Ramsey v. Corronado

• Court: District Court, S.D. California
• Decided: May 24, 2023
• Docket: 3:22-cv-01859
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL RAMSEY, Case No.: 22-cv-1859-MMA (WVG) CDCR #K99536 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA 14 PAUPERIS;

15 vs. (2) DISMISSING DUE PROCESS 16 CLAIM FOR FAILURE TO STATE A CLAIM UNDER 28 U.S.C. 17 J. CORRONADO, G. ORTIZ, H. §§ 1915(e)(2)(B) & 1915A; AND 18 MOSELEY, (3) DIRECTING U.S. MARSHAL TO Defendants. 19 EFFECT SERVICE UPON DEFENDANTS AS TO PLAINTIFF’S 20 FIRST AMENDMENT CLAIMS 21 ONLY PURSUANT TO 28 U.S.C. § 1915(d) AND FED. R. CIV. P. 4(c)(3) 22 23 24 I. INTRODUCTION 25 Daniel Chris Ramsey (“Plaintiff” of “Ramsey”), a state inmate currently 26 incarcerated at High Desert State Prison and proceeding pro se, has filed a civil rights 27 action pursuant to 42 U.S.C. § 1983, along with an application to proceed in forma 28 pauperis (“IFP”). Doc. Nos. 6, 7. In his Complaint, Ramsey alleges his Due Process and 1 First Amendment rights were violated when Defendants withheld some of his mail. See 2 Doc. No. 6. For the reasons discussed below, the Court grants Plaintiff’s IFP motion, 3 dismisses his due process claim and directs U.S. Marshal Service of the Complaint as to 4 his First Amendment claim. 5 II. MOTION TO PROCEED IFP 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $402. See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the 9 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C. 10 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 11 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 12 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 13 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified 14 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . . 15 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 17 trust account statement, the Court assesses an initial payment of 20% of (a) the average 18 monthly deposits in the account for the past six months, or (b) the average monthly 19 balance in the account for the past six months, whichever is greater, unless the prisoner 20 has no assets. See 28 U.S.C. § 1915(b)(1) & (4). Prisoners who proceed IFP must repay 21 the entire fee in installments regardless of whether their action is ultimately dismissed. 22 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016). 23 Plaintiff has provided a Prison Certificate authorized by an accounting officer. 24 Doc. No. 7 at 1. During the six months prior to filing suit, Plaintiff had an average 25 monthly balance of $0.39, average monthly deposits of $0.29, and had an available 26 balance of $0.12 in his account at the time he filed suit. Id. The Court finds Plaintiff has 27 established an inability to pay the required filing fee and GRANTS Plaintiff’s IFP 28 Motion. While the Court will not assess an initial payment, Plaintiff will be required to 1 pay the full $350 filing fee in installments which will be collected from his trust account 2 as set forth in 28 U.S.C. § 1915(b)(2). 3 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b) 4 A. Legal Standards 5 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a 6 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 7 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 8 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 9 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 10 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 11 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a 12 claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires 13 that a complaint to “contain sufficient factual matter . . . to state a claim to relief that is 14 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 15 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals 16 of the elements of a cause of action, supported by mere conclusory statements, do not 17 suffice” to state a claim. Id. The “mere possibility of misconduct” or “unadorned, the 18 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 19 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 20 To state a claim under 42 U.S.C. § 1983, Plaintiff must allege two essential 21 elements: (1) that a right secured by the Constitution or laws of the United States was 22 violated and (2) that the alleged violation was committed by a person acting under the 23 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d 24 1030, 1035‒36 (9th Cir. 2015). 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 B. Plaintiff’s Allegations 2 In his Complaint, Ramsey alleges that on November 8, 2019, while he was an 3 inmate at R.J. Donovan Correctional Facility (“RJD”), he was sent, via mail, “nude 4 photographs with edited black permanent marker covering” the frontal nudity. Doc. No. 5 6 at 3. Mailroom staff confiscated the photographs and used a “substance/solvent” in an 6 attempt to remove the black markings. Id. After learning the photographs had been 7 confiscated Plaintiff filed an administrative grievance, requesting the photos be given to 8 him because they did not violated regulations set forth by the California Department of 9 Corrections and Rehabilitation (“CDCR”). See Doc. No. 6-2 at 2, 5. Ultimately, the 10 photographs were approved by Officer Garcia, the mailroom supervisor, and Garcia gave 11 them to Ramsey. Doc. No. 6 at 3. Plaintiff then withdrew his administrative grievance. 12 Id.; see also Doc. No. 6-2 at 3. 13 On February 12, 2020, Plaintiff again received photographs with nudity covered by 14 black, permanent marker and they were again confiscated. Doc. No. 3. Ramsey filed 15 another administrative grievance. Doc. No. 6-3 at 3. After a review, Garcia gave 16 Ramsey the photographs and Ramsey withdrew his grievance on March 17, 2020. Id.at 17 4. On the same day, Garcia issued a “128B chrono,”2 noting Ramsey had been given the 18 “allowable photos.” Doc. Nos. 6 at 3, 6-3 at 2. 19 In October of 2020, Ramsey wrote Garcia in anticipation of additional photographs 20 coming in. Garcia “made sure [Ramsey] received his mailed photographs” on that 21 occasion. Garcia also “remind[ed] staff that there were not to confiscate the 22 photographs.” Doc. No. 6 at 3–4. On October 20, 2020, Garcia sent Ramsey a note that 23

24 25 2 The Court takes judicial notice of the CDCR Department Operations Manual (“DOM”), which states CDC Form 128-B, General Chrono “shall be used by counselors and chaplains when making reports on 26 the religious activity or outside contacts of inmates.” DOM § 72010.7.1 (emphasis added). See Fed. R. Civ. P. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it 27 . . . (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Brown v. Valoff, 28 1 stated, in part, “I have spoken with my staff. Please let me know if this occurs again.” 2 Doc. No. 6-4 at 2. Plaintiff did not have “any problems” receiving his mail after that 3 until 2022. Doc. No. 6 at 4. 4 On May 6, 2022, mailroom staff confiscated photographs from Ramsey’s incoming 5 mail “for further review.” Id.; see also Doc. No. 6-5 at 2. The confiscated photos 6 depicted frontal nudity that was covered with black, permanent marker. Id. The 7 photographs were ultimately reviewed by Defendant Corronado, who concluded they 8 were in violation of CDCR regulations due to “nudity.” Doc. No. 6-5 at 2. Ramsey 9 received a CDCR Form 18193 which informed him the photographs were disallowed 10 because they were in violation of CDCR regulations against nudity. Id. Ramsey filed an 11 administrative grievance, noting that he had “been through th[is] same issue before” and 12 the photos should be approved because the nudity had been covered by permanent 13 marker. Doc. No. 6 at 4. On July 22, 2022, Defendant Moseley denied Ramsey’s appeal, 14 stating the photos depicted “exposed vaginas, bare female breasts, acts of sexual 15 intercourse, & fellatio.” Doc. No. 6-5 at 3. Moseley noted that “some [nudity was] 16 covered with black marker . . .[but] the black marker can be removed.” Id. 17 On July 13, 2022, Ramey received another CDCF Form 1819 notification signed 18 by Defendant Ortiz, informing him the mail contained nude photographs and was being 19 withheld. Id. at 5; see also Doc. No. 6-6 at 2. Ramsey filed a grievance, noting that in 20 the past he had been permitted photographs with the nudity obscured by permanent 21 marker and pointing to the March 17, 2020 chrono issued by Garcia. Doc. No. 6 at 6. 22 Moseley denied Ramsey’s appeal on October 22, 2022, concluding the photographs were 23 “appropriately disallowed” because they contained nudity. Id.; see also Doc. No. 6-6 at 24 3. 25 26 27 3 A CDCR Form 1819 is titled “Notification of Disapproval—Mail / Packages / Publication.” See DOM §54010.16. 28 1 C. Discussion 2 Ramsey contends his First Amendment and Due Process rights were violated by 3 Corronado, Ortiz and Melendez. Specifically, he contends all three defendants 4 improperly categorized the photographs as contraband when the nudity had been 5 completely obscured by black permanent marker. Doc. No. 6 at 3–6. Plaintiff seeks 6 $200,00 in money damages and the return of the confiscated photographs or “similar” 7 photographs. Id. at 8. 8 1. Due Process 9 Plaintiff contends Defendants violated his due process rights by improperly 10 confiscating the photographs from his mail. Id. 3–6. Prisons may regulate the processing 11 of inmate mail so long as those regulations further an important or substantial 12 government interest other than the suppression of expression. See Procunier v. Martinez, 13 416 U.S. 396, 411–12 (1974) (overruled on other grounds, Thornburgh v. Abbott, 490 14 U.S. 401, 412–414 (1989)). Nevertheless, prisoners have a Fourteenth Amendment due 15 process liberty interest in receiving notice that incoming mail has been withheld by 16 prison authorities. Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999). This liberty 17 interest is protected from “arbitrary government invasion,” and any decision to censor or 18 withhold delivery of mail must be accompanied by “minimum procedural safeguards.” 19 Procunier, 416 U.S. at 417–18. These safeguards include: (1) notifying the inmate that 20 the mail was seized; (2) allowing the inmate a reasonable opportunity to protest the 21 decision; and (3) referring any complaints to a prison official other than the one who 22 seized the mail. Id. at 418–19; Krug v. Lutz, 329 F.3d 692, 697–08 (9th Cir. 2003) 23 (“Following Thornburgh, this circuit has repeatedly acknowledged that withholding 24 delivery of inmate mail must be accompanied by the minimum procedural safeguards 25 established in [Procunier].”). 26 Here, Ramsey concedes he was informed his mail was being withheld because the 27 enclosed photos violated CDCR regulations. On both occasions he received notification 28 his mail was “disapproved” via CDCR Form 1819––the first signed by Corronado on 1 May 6, 2022 and the second signed by Ortiz on July 13, 2022. Doc. Nos. 6-5 at 2, 6-6 at 2 2. Ramsey was provided an opportunity to appeal both decisions via administrative 3 grievance, and he did so. See Doc. No. 6 at 4–5. Plaintiff’s grievance appeals were 4 reviewed by Moseley and denied on July 29, 2022 and October 22, 2022, respectively. 5 Doc. Nos. 6-5 at 3, 6-6 at 3. The reason for the denial was explained to Ramsey. See id. 6 As such, Ramsey received all the process he was due. Thus, to the extent he claims his 7 due process rights were violated by withholding his mail, he has failed to state a claim. 8 Procunier, 416 U.S. at 417–18 9 Furthermore, to the extent Ramsey alleges Mosely also denied him due process 10 when he denied his administrative appeals, Ramsey also fails to state a claim. Inmates 11 have no stand-alone due process right related to administrative grievance process. 12 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 13 640 (9th Cir. 1988) (holding there is no protected liberty interest to a grievance 14 procedure). California’s regulations grant prisoners a purely procedural right: the right to 15 have a prison appeal. See Cal. Code Regs. tit. 15, §§ 3084–3084.9 (2014). In other 16 words, prison officials are not required under federal law to process inmate grievances in 17 a certain way. Thus, the denial, rejection, screening out of issues, review, or cancellation 18 of a grievance does not constitute a due process violation. See, e.g., Evans v. Skolnik, 19 637 F. App’x 285, 288 (9th Cir. 2015) (stating a prison official’s denial of a grievance 20 does not itself violate the constitution); Towner v. Knowles, No. S-08-cv-2823-LKK- 21 EFB, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (finding allegations that prison 22 officials screened out inmate appeals without any basis failed to indicate a deprivation of 23 federal rights); Williams v. Cate, 1:09-CV-00568-OWW-YNP PC, 2009 WL 3789597, at 24 *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the 25 vindication of his administrative claims.”). Therefore, Ramsey cannot state a due process 26 claim against Moseley for denying his administrative appeals. See Ramirez, 334 F.3d at 27 860. 28 In sum, Plaintiff has failed to state a due process claim upon which relief may be 1 granted against Corronado, Ortiz or Moseley. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 2 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27. 3 2. First Amendment 4 Ramsey also alleges Defendants Corronado, Ortiz and Moseley violated his First 5 Amendment rights when they confiscated photographs which did not depict nudity. Doc. 6 No. 6 at 3–6. Prisoners enjoy a First Amendment right to send and receive mail. See 7 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh, 490 U.S. at 407). 8 A prison, however, may adopt regulations or practices which impinge on a prisoner’s 9 First Amendment rights so long as the regulations are “reasonably related to legitimate 10 penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987); Valdez v. 11 Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (stating jail personnel may regulate 12 speech if a restriction is reasonably related to legitimate penological interests and an 13 inmate is not deprived of all means of expression). The Turner standard applies to 14 regulations and practices concerning all correspondence between prisoners and to 15 regulations concerning incoming mail received by prisoners from non-prisoners. See 16 Thornburgh, 490 U.S. at 413. 17 Here, Plaintiff alleges his mail was improperly withheld for depicting frontal 18 nudity when, in fact, no nudity was shown. Specifically, both the May 6, 2022 and the 19 July 13, 2022 “Notification[s] of Disapproval for Mail” indicate the photos were 20 confiscated under California Code of Regulations §§ 3135(d)(1), and 3006(c)(17), both 21 of which prohibit possessing or receiving in the mail “sexually explicit” images that 22 depict “frontal nudity.” See Doc. Nos. 6-5 at 2, 6-6 at 2; see also Cal. Code Regs., tit. 15 23 §§ 3135(d)(1), 3006(c)(17). The notifications also cited DOM § 54010.14 as a basis for 24 confiscating the photos. See Doc. Nos. 6-5 at 2, 6-6 at 2. Section 54010.14 prohibits the 25 receipt of “obscene materials,” which include sexually explicit images that “show frontal 26 nudity including personal photographs, drawings, and magazines and pictorials that show 27 frontal nudity.” See DOM §§ 54010.14, 54010.15. 28 Ramsey does not challenge the CDCR regulations barring “sexually explicit” 1 photographs depicting frontal nudity. Instead, he alleges the confiscated photographs 2 were not prohibited under the cited regulations because the frontal nudity had been 3 completely obscured by black permanent marker. Ramsey points to photographs he 4 previously received after appeal, in which the frontal nudity was similarly blacked out. 5 Thus, he alleges Corronado, Ortiz and Melendez withheld the photographs despite 6 lacking a legitimate penological interest in doing so. Taking Ramsey’s allegations as 7 true, the Court finds his First Amendment claims against Defendants Corronado, Ortiz 8 and Moseley survive the “low threshold” set for sua sponte screening pursuant to 28 9 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 10 678; Turner, 482 U.S. at 89; see Thornburgh, 490 U.S. at 413. 11 IV. CONCLUSION 12 For the reasons set forth above, the Court hereby: 13 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 14 (Doc. No. 7). 15 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 16 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 17 payments from the account in an amount equal to twenty percent (20%) of the preceding 18 month’s income and forward payments to the Clerk of the Court each time the amount in 19 the account exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 20 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 21 TO THIS ACTION. 22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 23 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by 24 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 25 4. DISMISSES Plaintiff’s Due Process claims as to all Defendants pursuant to 26 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 27 5. DIRECTS the Clerk to issue summonses as to Plaintiff’s Complaint (Doc. 28 No. 6) upon Defendants and forward them to Plaintiff along with a blank U.S. Marshal 1 Forms 285. In addition, the Clerk will provide Plaintiff with certified copies of this 2 Order, a certified copy his Complaint, and the summonses so that he may serve the 3 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Forms 285 4 as completely and accurately as possible, include an address where Defendants may be 5 served, see S.D. Cal. Civ. L.R. 4.1.c, and return them to the United States Marshal 6 according to the instructions the Clerk provides in the letter accompanying his IFP 7 package. 8 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 9 upon Defendants as directed by Plaintiff on the USM Forms 285 provided, and to file 10 executed waivers of personal service upon Defendants with the Clerk of Court as soon as 11 possible after their return. Should a Defendant fail to return the U.S. Marshal’s request 12 for waiver of personal service within 90 days, the U.S. Marshal shall instead file the 13 completed Form USM 285 Process Receipt and Return with the Clerk of Court, include 14 the date the summons, Complaint and request for waiver was mailed to that Defendant, 15 and indicate why service upon the party remains unexecuted. All costs of that service 16 will be advanced by the United States; however, if a Defendant located within the United 17 States fails, without good cause to sign and return the waiver requested by the Marshal on 18 Plaintiff’s behalf, the Court will impose upon the Defendant any expenses later incurred 19 in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 20 7. ORDERS Defendants, once they have been served, to reply to Plaintiff’s 21 Complaint, and any subsequent pleading they may file in this matter in which they are 22 named as parties, within the time provided by the applicable provisions of Federal Rule 23 of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (stating that while a 24 defendant may occasionally be permitted to “waive the right to reply to any action 25 brought by a prisoner confined in any jail, prison, or other correctional facility under 26 section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 27 U.S.C. §§ 1915(e)(2) and 1915A(b), and thus, has made a preliminary determination 28 based on the face on the pleading that Plaintiff has a “reasonable opportunity to prevail 1 |}on the merits,” defendant is required to respond). 2 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 3 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’ 4 || counsel, a copy of every further pleading, motion, or other document submitted for the 5 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every 6 || original document he seeks to file with the Clerk of the Court, a certificate stating the 7 |}manner in which a true and correct copy of that document was served on Defendants or 8 || their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document 9 || received by the Court which has not been properly filed with the Clerk, or which fails to 10 include a Certificate of Service upon the Defendants, may be disregarded. 1] IT IS SO ORDERED. 12 Dated: May 24, 2023 13 Mikel lM =f phlr 14 HON. MICHAEL M. ANELLO 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28