(PC) Sekona v. Lucas ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 1:19-cv-00454-AWI-GSA (PC) 12 Plaintiff, ORDER DISMISSING COMPLAINT FOR VIOLATION OF RULE 8(a) AND FOR 13 v. FAILURE TO STATE A CLAIM UNDER § 1983, WITH LEAVE TO AMEND 14 LUCAS, et al., (ECF No. 1.) 15 Defendants. THIRTY-DAY DEADLINE TO FILE AMENDED COMPLAINT NOT EXCEEDING 16 25 PAGES 17 18 19 20 21 22 23 24 I. BACKGROUND 25 Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 26 with this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2019, Plaintiff filed the 27 Complaint commencing this action, which is now before the court for screening. 28 U.S.C. § 28 1915. (ECF No. 1.) 1 II. SCREENING REQUIREMENT 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 9 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 A complaint is required to contain “a short and plain statement of the claim showing that 11 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 15 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 16 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 17 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 18 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 19 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 20 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 21 plausibility standard. Id. 22 III. SUMMARY OF COMPLAINT 23 Plaintiff is presently incarcerated at Kern Valley State Prison in Delano, California, in the 24 custody of the California Department of Corrections and Rehabilitation (CDCR), where the 25 events at issue in the Complaint allegedly occurred. Plaintiff names as defendants Correctional 26 Officers Lucas, Gonzales, Hancock, and Robles (collectively, “Defendants”). Plaintiff proceeds 27 against Defendants in their individual and official capacities. 28 /// 1 Plaintiff’s allegations follow:1 2 On August 17, 2018, defendant Lucas cancelled Plaintiff’s grievances against defendants 3 Robles and Hancock due to time limits after four months of screening. On October 2, 2018, 4 defendant Lucas cancelled Plaintiff’s staff complaint against defendant Hancock. Defendant 5 Hancock violated Plaintiff’s rights by opening Plaintiff’s legal mail outside his presence on 6 October 2, 2018. Plaintiff filed a 602 against him and defendant C. Gonzales cancelled it on 7 February 19, 2019. Defendants A. Lucas and C. Gonzales denied responsibility. They are appeal 8 coordinators at KVSP. Defendants Hancock and Robles violated Plaintiff’s rights to legal mail. 9 On October 30, 2018, Plaintiff filed a 602 against defendant Litigation Coordinator Hancock. 10 After three and a half months it was back. Then in February 2019 it was cancelled by defendant 11 C. Gonzales, a Litigation Coordinator who helps Lucas. 12 Plaintiff wrote and requested assistance in English because his English test score was 2.3, 13 not over 4 points. They refused and mocked Plaintiff’s misspelling of English words. English 14 is Plaintiff’s second language. He did not finish high school or get a diploma. Because of adverse 15 actions by defendants Lucas and Gonzales, Plaintiff lacks equal access to administrative remedies 16 and the court. Since 2017, defendant Lucas tried to block Plaintiff’s staff complaints KVSP-0- 17 18-03810, 18-02781, 0-19-008-9, 0-18-03368, KVSP 0-19-00811, and 0-17-03353. This 18 violates Plaintiff’s First and Fourteenth Amendment rights, due process rights, prejudice and 19 deliberate indifference. 20 In May and June 2017, Plaintiff filed a grievance against C/O Bauder [not a defendant] 21 for staff misconduct. Plaintiff never got it back from defendant Lucas. Plaintiff filed a duplicate 22 on September 24, 2017. Defendant Lucas did not approve an investigation or allow Plaintiff to 23 refile a new one. Plaintiff refiled anyway and Lucas cancelled it. On October 17, 2017, Plaintiff 24 wrote to the KSVP Chief Appeals officer and complained about his 602 # KVSP-0-17-02787 25 filed in June 2017, but he never received a reply. On November 30, 2017, A. Lucas cancelled 26 27 1 Plaintiff’s allegations in the Complaint are rambling, difficult to decipher, and interspersed with legal argument and case cites. The court has made a good faith attempt to report the allegations reflecting the 28 meaning intended by Plaintiff. 1 Plaintiff’s 602 for time limits. But he never gave Plaintiff any investigative help or allowed him 2 a second chance. 3 On May 13, 2017, C/O Reyraga [not a defendant] worked at KVSP’s Medical Clinic and 4 always harassed Plaintiff there when he saw the doctor or nurse. Plaintiff filed a 602 against her 5 sometime in May or June, which was lost or destroyed. A. Lucas cancelled it when Plaintiff tried 6 to refile it but never helped Plaintiff write in English or investigate. 7 Plaintiff was wrongfully convicted and put away in segregation on C-status, and his food, 8 TV, Hot Pot, and fan were taken. While he was in the hospital, Lucas and Gonzales stole 9 Plaintiff’s personal property. Plaintiff never had access to 602 prison grievances because of 10 Lucas and Gonzales’s outrageous actions. Hancock, the Litigation Coordinator, still looked at 11 Plaintiff’s legal mail, opened it up and read it to find reasons to retaliate. On January 31, 2019, 12 Plaintiff had a court settlement conference. Hancock declined to take Plaintiff, delaying justice 13 and violating the First Amendment’s access to courts. Plaintiff’s chronic health problems are 14 worse because of segregation. Plaintiff cannot file a grievance because of threats of being past 15 the time limits. 16 Defendant Gonzales is an officer and appeal screening coordinator at KVSP. He causes 17 Plaintiff’s appeals to be declined, cancelled, or rejected, in violation of due process and the First 18 Amendment. On February 19, 2019, he cancelled Plaintiff’s 602 about staff misconduct to his 19 legal mail by defendant Hancock. Lucas and Hancock worked together to stop Plaintiff’s access 20 to the courts. On March 8, 2019, Hancock rejected Plaintiff’s 602 for Lucas’s misconduct, 21 blocking lots of Plaintiff’s 602’s. 22 On July 31, 2018, defendant Robles refused to pick up or sign Plaintiff’s legal mail. 23 Plaintiff asked him twice at 5:30pm and 9:00pm. But by August 1st, Plaintiff’s legal mail was 24 not signed or taken from his cell door. This delay caused damage to Plaintiff’s litigation of cases. 25 It was not an excuse that Robles was working a voluntary overtime shift. His obligation was to 26 sign and take care of the regular and legal mail, to sign and seal in the presence of the owner of 27 the mail. Other officials also damaged Plaintiff’s litigation. 28 On October 2, 2018, defendant Hancock sent an officer [not a defendant] who opened 1 and re-taped 6 pieces of Plaintiff’s mail, 3 from the Attorney General’s office and 3 from the 2 court. This violated Plaintiff’s right to have his mail opened in his presence. On January 31, 3 2019, defendant Hancock did not let Plaintiff go to his settlement conference at the court, out of 4 retaliation. Defendants Lucas and Gonzales tried to protect Hancock by cancelling Plaintiff’s 5 602 against Hancock. When Plaintiff complained to them, they schemed more, making the 602 6 remedy unavailable to Plaintiff and denying him access to the courts. 7 Plaintiff requests as relief a declaration, attorney’s fees, costs of suit, and compensatory 8 and punitive damages. 9 IV. PLAINTIFF’S CLAIMS 10 The Civil Rights Act under which this action was filed provides: 11 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 12 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 13 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 14 15 42 U.S.C. § 1983. 16 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 17 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 18 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 19 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 20 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 21 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 22 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 23 federal Constitution, Section 1983 offers no redress.” Id. 24 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 25 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 26 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 27 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 28 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 1 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 2 which he is legally required to do that causes the deprivation of which complaint is made.’” 3 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 5 established when an official sets in motion a ‘series of acts by others which the actor knows or 6 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 7 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 8 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 9 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 10 1026 (9th Cir. 2008). 11 A. Federal Rule of Civil Procedure 8(a) 12 Plaintiff’s Complaint fails to comply with Federal Rule of Civil Procedure 8(a). Pursuant 13 to Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the 14 pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are not required. 15 Plaintiff must only set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief 16 that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555. 17 Plaintiff’s Complaint is not a short, plain statement of his claims. His allegations and 18 statement of facts are rambling and difficult to understand. Plaintiff intersperses his allegations 19 with legal cites and conclusory statements. Because Plaintiff’s Complaint does not clearly and 20 succinctly state what happened, Plaintiff’s Complaint shall be dismissed for violation of Rule 21 8(a), with leave to amend. Twenty-five pages are more than sufficient for Plaintiff to state his 22 allegations and claims in the First Amended Complaint. To comply with Rule 8(a), Plaintiff 23 must clearly and succinctly set forth his allegations, preferably in chronological order. Plaintiff 24 should not state the same allegations more than once, or include any case cites or legal analysis 25 in the amended complaint. 26 /// 27 /// 28 B. Official Capacity 1 Plaintiff sues the Defendants in their individual and official capacities. To the extent that 2 Plaintiff is attempting to pursue damages claims against the named Defendants in their official 3 capacities, he may not do so. “The Eleventh Amendment bars suits for money damages in federal 4 court against a state, its agencies, and state officials in their official capacities.” Aholelei v. 5 Dep’t. of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the 6 Eleventh Amendment does not bar suits seeking damages against state officials in their personal 7 capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 8 2003), or suits for injunctive relief brought against state officials in their official capacities, 9 Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991). Thus, Plaintiff may only 10 proceed against Defendants in their individual capacities for monetary damages. 11 C. Appeals Process 12 Plaintiff's allegations against some of the Defendants pertain to their review and handling 13 of Plaintiff’s inmate appeals. The Due Process Clause protects prisoners from being deprived of 14 liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to 15 state a cause of action for deprivation of due process, a plaintiff must first establish the existence 16 of a liberty interest for which the protection is sought. “States may under certain circumstances 17 create liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 18 U.S. 472, 483-84 (1995). Liberty interests created by state law are generally limited to freedom 19 from restraint which “imposes atypical and significant hardship on the inmate in relation to the 20 ordinary incidents of prison life.” Id. 21 “[I]nmates lack a separate constitutional entitlement to a specific prison grievance 22 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in 23 processing of appeals because no entitlement to a specific grievance procedure), citing Mann v. 24 Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a procedural right 25 only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 F. 26 Supp. 8, 10 (N.D. Ill. 1982), accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 27 also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure 28 confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest 1 requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. 2 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 3 Actions in reviewing a prisoner’s administrative appeal generally cannot serve as the 4 basis for liability in a section 1983 action. Buckley, 997 F.2d at 495. The argument that anyone 5 who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution 6 himself is not correct. “Only persons who cause or participate in the violations are responsible. 7 Ruling against a prisoner on an administrative complaint does not cause or contribute to the 8 violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005) accord George v. Smith, 507 9 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance 10 v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).; Haney v. Htay, No. 1:16-CV-00310-AWI-SKO- 11 PC, 2017 WL 698318, at *4–5 (E.D. Cal. Feb. 21, 2017). 12 Thus, Plaintiff’s allegations that any of the Defendants failed to properly process 13 Plaintiff’s appeals fails to state a cognizable claim. 14 D. Loss of Personal Property 15 Plaintiff claims that some of his personal property was taken by prison officials, namely 16 his food, TV, hot pot, and fan. Prisoners have a protected interest in their personal property. 17 Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However, a plaintiff has no due process claim 18 based on the defendants’ unauthorized deprivation of his personal property—whether intentional 19 or negligent—if a meaningful state post-deprivation remedy for his loss is available. See Hudson 20 v. Palmer, 468 U.S. 517, 533 (1984). California’s tort claim process provides that adequate post- 21 deprivation remedy. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t 22 Code §§ 810–895) (“[A] negligent or intentional deprivation of a prisoner’s property fails to state 23 a claim under section 1983 if the state has an adequate post deprivation remedy.”); see also 24 Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, No. 2:09- 25 CV-02002-PMP, 2012 WL 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged loss 26 or destruction of newspaper, magazines, and books failed to state a Fourteenth Amendment claim 27 /// 28 pursuant to Hudson and noting that “[i]f Plaintiff wishes to recoup the value of the alleged lost 1 materials, he will have to file a claim in small claims court in state court.”). 2 Therefore, Plaintiff fails to state a due process claim for confiscation of his personal 3 property. 4 E. Access to Courts 5 Plaintiff claims he was denied access to the courts when his mail was not sent out in a 6 timely manner and when his 602 appeals were repeatedly denied or otherwise mishandled. As 7 discussed above, actions in reviewing prisoner’s administrative appeal generally cannot serve as 8 the basis for liability in a section 1983 action. Buckley, 997 F.2d at 495. Therefore, Plaintiff’s 9 allegations that Defendants did not properly process Plaintiff’s 602 appeals fail to state a claim 10 for denial of access to courts. 11 Plaintiff also claims that some of the Defendants purposely delayed sending out his mail, 12 which affected the litigation of his cases. Plaintiff has a constitutional right to access the courts, 13 but the interferences complained of by Plaintiff must have caused him to sustain an actual injury. 14 Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179 (2002) Lewis v. Casey, 518 U.S. 343, 15 351, 116 S.Ct. 2174 (1996); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Phillips v. Hust, 16 588 F.3d 652, 655 (9th Cir. 2009); Jones, 393 F.3d at 936. The absence of an injury precludes 17 an access claim, and Plaintiff’s complaint is devoid of any facts suggesting any injury occurred. 18 Harbury, 536 U.S. at 415-16; Jones, 393 F.3d at 936. Defendants’ actions must have been the 19 proximate cause of actual prejudice to Plaintiff. Silva, 658 F.3d at 1103–04. To state a viable 20 claim for relief, Plaintiff must show that he suffered an actual injury, which requires “actual 21 prejudice to contemplated or existing litigation” by being shut out of court. Nevada Dep't of Corr. 22 v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348, 351); Christopher, 23 536 U.S. at 415; Phillips, 588 F.3d at 655. The complaint should state the underlying claim in 24 accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently 25 pursued, and a like plain statement should describe any remedy available under the access claim 26 and presently unique to it. Christopher, 536 U.S. 403. 27 /// 28 1 Here, Plaintiff fails to allege facts showing that the delay of his mail caused him an actual 2 injury, which requires actual prejudice to contemplated or existing litigation by being shut out of 3 court. Therefore, Plaintiff fails to state a claim for denial of access to the courts. 4 F. Fourteenth Amendment – Due Process - Hearing on RVR 5 The Due Process Clause protects prisoners from being deprived of liberty without due 6 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of 7 action for deprivation of due process, a plaintiff must first establish the existence of a liberty 8 interest for which the protection is sought. “States may under certain circumstances create liberty 9 interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483- 10 84 (1995). “When protected interests are implicated, the right to some kind of prior hearing is 11 paramount . . . .” Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (quoting Board of Regents 12 of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972)). However, “[p]rison disciplinary 13 proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant 14 in such proceedings does not apply.” Wolff, 418 U.S. at 556. With respect to prison disciplinary 15 proceedings, the minimum procedural requirements that must be met are: (1) written notice of 16 the charges; (2) at least 24 hours between the time the prisoner receives written notice and the 17 time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the 18 fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right 19 of the prisoner to call witnesses in his defense, when permitting him to do so would not be unduly 20 hazardous to institutional safety or correctional goals; and (5) assistance to the prisoner where 21 the prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. As long as 22 the five minimum Wolff requirements are met, due process has been satisfied. Walker v. 23 Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin, 515 U.S. 24 472. In addition, “some evidence” must support the decision of the hearing officer, 25 Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some indicia of 26 reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some evidence” standard is 27 not particularly stringent, and the relevant inquiry is whether “there is any evidence in the record 28 that could support the conclusion reached . . . .” Hill, 472 U.S. at 455-56. 1 Under state law, the existence of a liberty interest created by prison regulations is 2 determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481- 3 84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are “generally limited to 4 freedom from restraint which . . . imposes atypical and significant hardship on the inmate in 5 relation to the ordinary incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716, 6 718 (9th Cir. 2007). 7 The Due Process Clause itself does not confer on inmates a liberty interest in being 8 confined in the general prison population instead of administrative segregation. See Hewitt v. 9 Helms, 459 U.S. 460, 466-68 (1983); see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) 10 (convicted inmate’s due process claim fails because he has no liberty interest in freedom from 11 state action taken within sentence imposed and administrative segregation falls within the terms 12 of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v. Hayes, 13 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff’s placement and retention in the SHU was within 14 range of confinement normally expected by inmates in relation to ordinary incidents of prison 15 life and, therefore, plaintiff had no protected liberty interest in being free from confinement in 16 the SHU) (quotations omitted). 17 Plaintiff claims that he was placed in administrative segregation as a result of his 18 conviction at a disciplinary hearing. He also alleges that some of his personal property was taken 19 and his health problems became worse because of being placed in segregation. Plaintiff has not 20 described conditions related to his housing in administrative segregation that impose atypical and 21 significant hardships on Plaintiff in relation to the ordinary incidents of prison life. Therefore, 22 Plaintiff has not established a liberty interest for which due process protections apply, and 23 Plaintiff fails to state a due process claim based on his housing in administrative segregation, loss 24 of personal property, and suffering an undescribed health problem. 25 G. Equal Protection – Fourteenth Amendment 26 Equal protection claims arise when a charge is made that similarly situated individuals 27 are treated differently without a rational relationship to a legitimate state purpose. See San 28 Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from invidious 1 discrimination based on race. See Wolff, 418 U.S. at 556. Racial segregation is unconstitutional 2 within prisons save for the necessities of prison security and discipline. See Cruz v. Beto, 405 3 U.S. 319, 321 (1972) (per curiam). Prisoners are also protected from intentional discrimination 4 on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Equal 5 protection claims are not necessarily limited to racial and religious discrimination. See Lee v. 6 City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001) (applying minimal scrutiny to equal 7 protection claim by a disabled plaintiff because the disabled do not constitute a suspect class); 8 see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 2007) (applying minimal scrutiny to equal 9 protection claim based on denial of in-cell meals where no allegation of race-based 10 discrimination was made); Hightower v. Schwarzenegger, 2007 WL 732555 (E.D. Cal. March 11 19, 2008). 12 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the 13 Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 14 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that 15 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. 16 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 17 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 18 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 19 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 20 Plaintiff states conclusory allegations that he was discriminated against by defendants 21 because of his inability to speak the English language well. However, Plaintiff fails to plead 22 facts indicating that he or inmates who spoke English as a second language were purposely 23 discriminated against for that reason by any of the Defendants. 24 H. Retaliation 25 “Prisoners have a First Amendment right to file grievances against prison officials and to 26 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 27 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a 28 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 1 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 2 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 3 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 4 408 F.3d 559, 567–68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must 5 establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 6 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 7 Plaintiff’s allegations are conclusory and fail to allege that any of the Defendants took 8 “adverse action” against Plaintiff because of his 602 appeals or litigation. Moreover, Plaintiff 9 has failed to allege facts for each of the elements of a claim for retaliation. 10 I. State Law Claims 11 Plaintiff brings claims for forgery and negligence. These are state law claims. Plaintiff 12 is informed that violation of state law is not sufficient to state a claim for relief under § 1983. 13 Section 1983 does not provide a cause of action for violations of state law. See Galen v. Cnty. 14 of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim under § 1983, there must be 15 a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); 16 also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga University v. 17 Doe, 536 U.S. 273, 279 (2002). Although the court may exercise supplemental jurisdiction over 18 state law claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 19 U.S.C. § 1367. In this instance, the court fails to find any cognizable federal claims in the 20 Complaint. Therefore, Plaintiff’s state claims fail. 21 J. Mail Tampering 22 Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 23 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). Nevertheless, correctional institutions and jails 24 have a legitimate governmental interest in imposing certain restraints on inmate or detainee 25 correspondence to maintain order and security. See Procunier v. Martinez, 416 U.S. 396, 413 26 (1974), overturned on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989). 27 For example, inmates and detainees may have their mail screened to ensure that there is no 28 contraband inside. Mangiaracina v. Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017). The mere 1 fact that prison officials open and conduct a visual inspection of a prisoner’s mail does not state 2 a claim for violation of a prisoner’s constitutional rights. Wolff, 418 U.S. at 576–77; Nordstrom 3 v. Ryan, 762 F.3d 903, 908-909 (9th Cir. 2014) (“Nordstrom I”); Mitchell v. Dupnick, 75 F.3d 4 517, 523 (9th Cir. 1996). 5 Prison officials may examine an inmate’s mail without infringing his rights and inspect 6 non-legal mail for contraband outside the inmate’s presence. United States v. Wilson, 447 F.2d 7 1, 8 n. 4 (9th Cir. 1971); Witherow, 52 F.3d at 265–66 (upholding inspection of outgoing mail). 8 In the Ninth Circuit, “mail from the courts, as contrasted with mail from a prisoner’s lawyer, is 9 not legal mail.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). “All correspondence from 10 a court to a litigant is a public document, which prison personnel could if they want inspect in 11 the court’s files.” Id. at 1094 (citing to Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987) ). 12 Under federal law, “legal mail” entitled to First Amendment protection is narrowly 13 defined as confidential correspondence between a prisoner and his attorney. See Nordstrom I, 14 762 F.3d at 909. The Ninth Circuit “recognize[s] that prisoners have a protected First 15 Amendment interest in having properly marked legal mail [including civil mail] opened only in 16 their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). However, an 17 isolated instance or occasional opening of legal mail outside the inmate’s presence does not rise 18 to the level of a constitutional violation. See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th 19 Cir. 1989). 20 Plaintiff alleges that some of the Defendants opened his legal mail outside of his presence, 21 and some refused Plaintiff’s request to sign and pick up mail from his cell. These allegations fail 22 to state a constitutional violation. Plaintiff alleges that his mail from the court and from the 23 Attorney General’s Office was improperly opened outside his presence. Mail from the court is 24 not legal mail. Plaintiff does not allege that any of the Defendants improperly read his legal mail, 25 or prevented him from sending legal mail. Moreover, Plaintiff does not allege that any of the 26 correspondence was properly marked mail to his attorney or prospective attorney. Thus, Plaintiff 27 fails to state a claim for interference with his mail under the First and Sixth Amendments. 28 /// 1 K. Declaratory Relief and Attorney’s Fees 2 Besides monetary damages, Plaintiff requests a declaration, costs of suit, and attorney’s 3 fees as relief. Declaratory relief should be denied because it is subsumed by Plaintiff’s damages 4 claim. See Rhodes, 408 F.3d at 565-66 n.8 (because claim for damages entails determination of 5 whether officers’ alleged conduct violated plaintiff’s rights, the separate request for declaratory 6 relief is subsumed by damages action); see also Fitzpatrick v. Gates, No. CV 00-4191-GAF 7 (AJWx), 2001 WL 630534, at *5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff seeks damages 8 or relief for an alleged constitutional injury that has already occurred declaratory relief generally 9 is inappropriate[.]”) Therefore, Plaintiff is not entitled to a declaratory relief if he prevails in this 10 action. 11 With regard to attorney’s fees, “[i]n any action or proceeding to enforce a provision of 12 section[] 1983 . . . , the court, in its discretion, may allow the prevailing party . . . reasonable 13 attorney’s fees. . . .” 42 U.S.C. § 1988(b). However, Plaintiff’s contention that he is entitled to 14 attorney’s fees if he prevails in this case is without merit. Plaintiff is representing himself in this 15 action. Because Plaintiff is not represented by an attorney, he is not entitled to recover attorney’s 16 fees if he prevails. See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990), superseded 17 by statute as stated in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); Gonzalez v. 18 Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v. Cnty. of Los Angeles, 654 F.3d 19 950, 954 (9th Cir. 2011) (“The Court accordingly adopted a per se rule, categorically precluding 20 an award of attorney’s fees under § 1988 to a pro se attorney-plaintiff.” Therefore, Plaintiff is 21 not entitled to attorney’s fees if he prevails in this case. 22 V. CONCLUSION AND ORDER 23 For the reasons set forth above, the court finds that Plaintiffs Complaint violates Rule 24 8(a) of the Federal Rules of Civil Procedure and fails to state any cognizable claims against any 25 of the Defendants for violating his constitutional or other federal rights. Under Rule 15(a) of the 26 Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend when justice so 27 requires.” Therefore, Plaintiff shall be granted leave to amend the complaint. The court will 28 provide Plaintiff with thirty days to file a First Amended Complaint curing the deficiencies 1 identified above. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). The amended 2 complaint may not exceed 25 pages. 3 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each 4 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights. 5 Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set 6 forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 7 (quoting Twombly, 550 U.S. at 555). 8 Plaintiff must demonstrate in his amended complaint how the conditions complained of 9 have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th 10 Cir. 1980). The amended complaint must allege in specific terms how each named defendant is 11 involved, or how implementation of the underground regulation caused violation of his rights. 12 Plaintiff may not change the nature of this suit by adding unrelated claims in his amended 13 complaint. George, 507 F.3d at 607 (no “buckshot” complaints). Also, Plaintiff is not granted 14 leave to add allegations to the amended complaint of events that occurred after April 9, 2019, the 15 date the original Complaint was filed. 16 As a general rule, an amended complaint supersedes the original complaint. See Loux v. 17 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original 18 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 19 an original complaint, each claim and the involvement of each defendant must be sufficiently 20 alleged. 21 The First Amended Complaint should be clearly and boldly titled “FIRST AMENDED 22 COMPLAINT,” refer to the appropriate case number, and be an original signed under penalty of 23 perjury. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s Complaint, filed on April 9, 2019, is dismissed for violation of Rule 26 8(a) of the Federal Rules of Civil Procedure and for Plaintiff’s failure to state a 27 claim upon which relief may be granted, with leave to amend; 28 /// 1 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 2 3. Within thirty days from the date of service of this order, Plaintiff shall file a First 3 Amended Complaint curing the deficiencies in the Complaint identified by the 4 court; 5 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and 6 refer to the case number 1:19-cv-00454-AWI-GSA-PC; and 7 5. Plaintiff’s failure to comply with this order shall result in a recommendation that 8 this action be dismissed for failure to state a claim. 9 IT IS SO ORDERED. 10 11 Dated: June 27, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28