(PC) Alcon v. Rhoads ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW ALCON, No. 2: 20-cv-0366 JAM KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 RHOADS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint. (ECF 19 No. 13.) 20 Plaintiff’s Allegations 21 Named as defendants are Associate Warden Lane, Appeals Examiner Murphy, M. Voong, 22 Deputy Warden Pickett and Correctional Officers Kelly, Rhoads and Galindo. 23 Plaintiff alleges that he has a magazine subscription to Hemmings Motor News. Plaintiff 24 alleges that his issues for January 2018, April 2018 and September 2018 were not delivered to 25 him, although it was established that the issues were sent from the vendor to the prison. 26 Plaintiff alleges that in January 2018 and April 2018, plaintiff and inmate Litton were 27 returning from pill line where defendant Rhoads told plaintiff that he had read plaintiff’s January 28 2018 and April 2018 issues of Hemmings Motor News. 1 Plaintiff allege that on June 7, 2018, plaintiff saw defendant Rhoads looking at plaintiff’s 2 July 2018 issue of Hemmings Motor News. Plaintiff told defendant Rhoads, “I get the 3 Hemmings Magazine.” Defendant Rhoads responded, “This one is yours, you’ll get it when we 4 pass out the mail.” Plaintiff did not receive his June 2018 issue of Hemmings Motor News until 5 June 11, 2018. 6 Plaintiff alleges that in September 2018, he observed an unknown correctional officer 7 reading his Hemmings Motor News. The unknown correctional officer told plaintiff that plaintiff 8 could have his magazine when he (the unknown correctional officer) was done with it. Plaintiff 9 did not receive his September 2018 Hemmings Motor News. 10 Plaintiff alleges that correctional officers at his prison, High Desert State Prison 11 (“HDSP”), “have a culture” of reading inmate mail and delaying and confiscating inmate mail. In 12 support of this claim, plaintiff alleges that on November 27, 2018, defendant Galindo saw 13 plaintiff and said, “Oh Alcon.” Defendant Galindo then walked into the office and came out with 14 plaintiff’s Predator Xtreme Magazine. As he handed it to plaintiff, defendant Galindo said, “I had 15 to flip through that one.” 16 Plaintiff also alleges that on December 16, 2018, defendants Kelly and Galindo passed out 17 the mail at 4:00 p.m. On plaintiff’s way back from pill line, plaintiff saw a stack of magazines 18 sitting in front of defendant Kelly as he sat at the desk in the office. Plaintiff alleges that the last 19 time defendant Kelly worked, plaintiff did not receive his Hemmings Motor News the day it was 20 delivered, which was December 6, 2018. Instead, plaintiff received it on the morning of 21 December 7, 2018. 22 Plaintiff alleges that on August 20, 2018, he filed a grievance regarding the alleged theft 23 of his January 2018, April 2018 and September 2018 Hemmings Motor News magazines. On 24 September 5, 2018, defendant Lane partially granted plaintiff’s appeal. Defendant Lane denied 25 plaintiff’s request for the magazines because he could not verify that plaintiff had a subscription 26 to Hemmings Motor News. 27 On November 1, 2018, defendant Pickett partially granted plaintiff’s second level appeal. 28 Defendant Pickett stated that plaintiff’s subscription to Hemmings Motor News was verified. 1 Defendant Pickett stated that a search of the mailroom was conducted but plaintiff’s magazines 2 could not be located. Defendant Pickett stated that it was possible that plaintiff’s magazines were 3 damaged and unreadable, making them undeliverable. Defendant Pickett stated that plaintiff was 4 offered different magazines to choose as replacements, but plaintiff did not want them. 5 Defendants Murphy and Voong reviewed plaintiff’s third level grievance. They found 6 that no changes or modifications were required based on the response to the second level 7 grievance. 8 Plaintiff alleges violations of his right to due process and the First Amendment. 9 Discussion 10 Plaintiff alleges that defendants Rhoads, Galindo and Kelly deliberately delayed 11 delivering his mail to him and/or confiscated his mail. These allegations state a potentially 12 cognizable First Amendment claim against these defendants. See Green v. Franklin, 2017 WL 13 9360853, at *3 (E.D. Cal. Oct. 26, 2017). 14 Plaintiff alleges that defendants’ tampering with his mail, i.e., magazines, violated his 15 right to due process. As the undersigned advised plaintiff in the March 6, 2020 order screening 16 the amended complaint, prisoners have a protected interest in their personal property. Hansen v. 17 May, 502 F.2d 728, 730 (9th Cir. 1974). An authorized, intentional deprivation of property is 18 actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984). 19 An authorized deprivation is one carried out pursuant to established state procedures, regulations, 20 or statutes. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982); Piatt v. McDougall, 21 773 F.2d 1032, 1036 (9th Cir.1985). 22 However, “[a]n unauthorized intentional deprivation of property by a state employee does 23 not constitute a violation of the procedural requirements of the Due Process Clause of the 24 Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.” 25 Hudson, 468 U.S. at 533. 26 Plaintiff does not allege that he was deprived of his magazines pursuant to a state 27 procedure, regulation or statute. Therefore, plaintiff is alleging an unauthorized deprivation of his 28 property. Accordingly, plaintiff has an adequate post-deprivation remedy available under 1 California law. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code 2 §§ 810–95). For these reasons, plaintiff has failed to state a potentially cognizable due process 3 claim for the alleged deprivation of his personal property. 4 As in the amended complaint, plaintiff alleges in the second amended complaint that 5 defendants Lane, Murphy, Voong and Pickett either partially granted or denied his grievances 6 regarding his missing magazines. However, generally speaking, an inmate has no freestanding 7 constitutional right to a prison or jail grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 8 (9th Cir. 2003). 9 In addition, a supervisor is liable for constitutional violations of a subordinate only “if the 10 supervisor participated in or directed the violations, or knew of the violations and failed to act to 11 prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff does not allege that 12 defendants Lane, Murphy, Voong or Pickett knew that correctional officers were withholding or 13 delaying the delivery of his magazines. Plaintiff does not allege that defendants Lane, Murphy, 14 Voong or Pickett knew of the alleged “culture” at HDSP of correctional officers withholding or 15 delaying the delivery of inmate mail. For these reasons, the undersigned finds that plaintiff has 16 not pled sufficient facts to state potentially cognizable First Amendment claims against 17 defendants Lane, Murphy, Voong and Pickett. 18 Because plaintiff has already been granted leave to amend and did not cure the pleading 19 defects described above, the undersigned herein recommends dismissal of all claims against 20 defendants Lane, Murphy, Voong and Pickett and the due process claims against defendants 21 Rhoads, Galindo and Kelly. The undersigned separately orders service of defendants Rhoads, 22 Galindo and Kelly as to plaintiff’s First Amendment claims. 23 Accordingly, IT IS HEREBY RECOMMENDED that all claims against defendants Lane, 24 Murphy, Voong and Pickett and the due process claims against defendants Rhoads, Galindo and 25 Kelly be dismissed. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, plaintiff may file written objections MwA 2 □□□ EAINTTU IN RAUL or POC eee TOY VY VI 1 | with the court and serve a copy on all parties. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 3 | failure to file objections within the specified time may waive the right to appeal the District 4 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 | Dated: July 21, 2020 ° Fens Arn 7 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 8 9 10 Alcon366.56 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28