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HAWKINS v. SHERIFF

October 6, 2005.

HOMER E. HAWKINS, Plaintiff,
v.
MARIN SHERIFF; et al., Defendants.



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

ORDER OF DISMISSAL WITH LEAVE TO AMEND

INTRODUCTION

Homer E. Hawkins, currently in custody at the San Mateo County Jail, filed this pro se civil rights action under 42 U.S.C. § 1983 in 2003, concerning events in 2002 and 2003 while he was in custody at the Marin County Jail. After determining that Hawkins had three prior qualifying dismissals and could not proceed in forma pauperis, the court dismissed the action without prejudice to Hawkins filing an action for which he paid the full filing fee at the time he filed his complaint. Hawkins appealed. The Ninth Circuit reversed the dismissal because the court had counted as a prior dismissal the dismissal of a habeas action filed by Hawkins which was not allowed under Andrews v. King, 398 F.3d 1113 (9th Cir. 2005), a case decided more than a year after this court's dismissal order was issued. The case file was returned from the Ninth Circuit last week, and it is now time to resume the case where it stopped, i.e., at the initial review stage. The complaint is now before the court for initial review under 28 U.S.C. § 1915A.

  BACKGROUND Hawkins' complaint in this action was very poorly written. He listed the primary defendant as "don't know" and the additional defendants as "none," although on the cover page he listed the defendants as the Marin Sheriff, chief of police, jail commander, and "the officer's employees". See Complaint, pp. 1, 3. Hawkins alleged in his complaint that a county officer was "doing thing's" and a "count officer threaten to do more because I have been fileing `grievances.'" Complaint, p. 3 (spelling and grammatical errors in source). Hawkins further alleged that he had filed numerous grievances about his legal materials being opened, thrown around his cell and disappearing. Hawkins further alleged that he had been threatened that the problems would continue if he did not stop writing grievances. He further alleged that his mail (that might have been legal mail) was returned because he was indigent. He requested this court to order officials at the jail to stop violating his rights.

  A few weeks after he filed his complaint, Hawkins filed a document entitled "Affidavit in support of motion to proceed in forma pauperis and for appointment of counsel/attorney: to amend (civil action/lawsuit): an order compelling discovery: request for production of documents." (Docket # 4.) The "affidavit" appears to be, among other things, an attempt to add new defendants to the action and add claims for violation of privacy rights and the attorney/client privilege based on monitoring of conversations between attorneys and clients, although it is not pled that Hawkins ever was subjected to any such monitoring.

  DISCUSSION

  A. Review Of Complaint

  A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

  To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

  The complaint is deficient in several respects and the "affidavit" did not cure the many deficiencies in the complaint. Hawkins must file an amended complaint that takes into consideration the following information.

  First, the retaliation claim appears deficient. An inmate suing his jailers under § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action did not advance legitimate penological goals, such as preserving institutional order and discipline. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). He also must allege that the defendants' actions caused him some injury. Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) (holding that a retaliation claim is not actionable unless there is an allegation of harm; the alleged harm may be a chilling effect on the exercise of First Amendment rights). The complaint appears to allege that retaliation was threatened but does not allege that any retaliation actually occurred. In some cases, the would-be retaliatory action is so insignificant that it does not deter the exercise of First Amendment rights. Minor acts such as "bad mouthing" and verbal threats sometimes cannot reasonably be expected to deter protected speech and therefore do not violate a plaintiff's First Amendment rights. See Coszalter v. City of Salem, 320 F. 3d 968, 975-76 (9th Cir. 2003). Hawkins must amend the claim to allege that he was subjected to retaliation if he wishes to pursue the claim. If Hawkins claims that the mere threat to retaliate was enough retaliation to chill his First Amendment rights, he must so allege to attempt to show an injury to him.

  Second, Hawkins has not identified who allegedly threatened to retaliate against him if he continued to file grievances. In his amended complaint, Hawkins must identify the person who allegedly threatened him. If he does not know the name of the person, he may describe that person by using a Doe defendant designation to refer to that defendant. (If he alleges that multiple unknown people violated his constitutional rights, each unknown person must be identified as a separate John Doe, e.g., John Doe #1, John Doe #2, etc. so that eventually each John Doe defendant can be replaced by a separate person when his or her true name becomes known.) Although the use of Doe defendants is acceptable to withstand dismissal of the complaint at the initial review stage, using Doe defendants creates its own problem: those persons cannot be served with process in this action until they are identified by their real names. Hawkins must promptly take steps to discover the names of the unnamed defendants and provide that information to the court in an amendment to his pleading no later than January 6, 2006; any unnamed or Doe defendants whose true name and correct address have not been provided by that deadline will be dismissed from this action. The burden remains on the plaintiff; the court will not undertake to investigate the names and identities of unnamed defendants and will not appoint an investigator to aid the plaintiff.

  Third, the requirement that Hawkins identify the allegedly responsible parties is not limited to the retaliation claim. For every claim, Hawkins must identify the defendants who he proposes to hold liable on that claim and must allege what each person did or failed to do to cause a violation of one or more of his constitutional rights. A plaintiff cannot lump together a number of unidentifiable persons as a group defendant. Allegations that unidentified members of a jail's staff acted inappropriately are insufficient to hold any particular person liable. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on individual defendant under § 1983 only if plaintiff can show that defendant proximately caused deprivation of federally protected right).

  Fourth, it appears that Hawkins may be attempting to claim a violation of his constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996). To establish a claim for any violation of the right of access to the courts, the inmate must show that there was an inadequacy in the jail's legal access program that caused him an actual injury. See id. at 351. To prove an actual injury, the inmate must show that the inadequacy hindered him in presenting a non-frivolous claim concerning his conviction or conditions of confinement. See id. at 355. Examples of impermissible hindrances include: an inmate whose complaint was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the jail's legal assistance facilities, he could not have known; and an inmate who had "suffered arguably actionable harm" that he wished to bring to the attention of the court, but was so stymied by the inadequacies of the library that he was unable even to file a complaint. See id. at 351. Mere delay in filing papers would not be enough, for example, ...


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