Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NELSON v. GIURBINO

October 7, 2005.

FLOYD H. NELSON Plaintiff,
v.
G.J. GIURBINO, et al., Defendants.



The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Report and Recommendation Granting Motion to Dismiss [Doc. No. 18]

Plaintiff, a California state prisoner proceeding pro se, brings this action under 42 U.S.C. 1983 alleging that Defendants denied him access to internet generated legal materials, in violation of the First Amendment and the District Court injunction in Clement v. California Department of Corrections, 220 F.Supp.2d 1098 (9th Cir. 2002). Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages from Defendants. Defendants now move to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants' motion has been referred to Magistrate Judge Battaglia for issuance of a report and recommendation, pursuant to Local Civil Rule 72.3(f). Plaintiff filed an Opposition and Defendants filed a Reply. The Court finds this motion appropriate for submission on the papers and without oral argument, pursuant to Local Rule 7.1(d)(1). For the reasons set forth herein, it is recommended that Defendants' Motion to Dismiss be GRANTED without prejudice and with leave to amend. Factual Background

Plaintiff is currently an inmate at Pelican Bay State Prison. He alleges that, while incarcerated at Centinela State Prison, Defendants violated his constitutional rights by denying him access to internet generated legal materials and by thereafter denying his appeals regarding the alleged constitutional violations.

  On March 20, 2001, Defendant Larry Witeck, Deputy Director of Institutions Division, issued a memorandum entitled "Appellate Court Ruling on Internet Mail" (the `2001 Memorandum') to state prisons and personnel. Compl., ¶ 12. The 2001 Memorandum addressed the recent California Court of Appeals decision in In re Aaron Collins on Habeas Corpus upholding Pelican Bay's policy prohibiting inmate access to internet generated materials. In re Aaron Collins on Habeas Corpus, 86 Cal. App. 4th 1176, 1186 (Cal.Ct.App. 2001). The California Court of Appeals found that Pelican Bay's internet policy was "reasonably related to legitimate penological interests" and therefore constitutionally permissible. Id. The 2001 Memorandum further instructed each state prison facility to amend and align its policies and procedures regarding internet generated materials with the decision in In re Aaron Collins. Mot. to Dismiss, exh. D. In response to the 2001 Memorandum, Defendant G.J. Giubrino, Warden of Centinela State Prison, amended Centinela's Operational Procedures to prohibit inmate access to mail containing information generated from the internet. Compl., ¶ 13.

  On June 6, 2002, Defendant Asuncion, Captain, Centinela State Prison, issued Plaintiff a Notice of Disapproval disallowing a "legal resource guide" downloaded from the internet. Compl., ¶ 14. On June 16, 2002, Plaintiff filed a first-level appeal, log no. CEN-C-02-0746 (the '0746 appeal), requesting access to the legal resource guide. Compl., ¶ 15. On June 17, 2002, Defendants D.C. Johnson and J.C. Stokes denied the appeal, stating that "internet-generated material[s] [are] not allowed to inmates within the CDC". Compl., ¶ 16.

  Plaintiff subsequently submitted a second-level appeal and again requested access to the legal resource guide. On August 7, 2002, Defendants Giubrino and Johnson denied Plaintiff's second level appeal, again stating that "internet materials [are] not allowed to inmates within the CDC". Compl., ¶ 19. During the '0746 appeal process, Plaintiff received a second Notice of Disapproval, dated July 18, 2002, which again disallowed Plaintiff access to an internet generated legal resource guide. Compl., ¶ 18. Plaintiff alleges that on July 19, 2002, he filed an informal level inmate appeal requesting access to the legal resource guide. Defendants deny ever receiving this appeal and assert that no copy of this appeal exists in their records; Plaintiff has not submitted any documentation to support the existence of this appeal. Plaintiff nonetheless contends that his July 19, 2002 appeal was denied at the informal-level due to `time constraints'. Compl., ¶ 23.

  On September 9, 2002, the United States District Court issued a permanent, statewide injunction in Clement v. California Department of Corrections which enjoined the California Department of Corrections (CDC) "from enforcing any policy which prohibited California inmates from receiving mail because it contained internet generated materials". 220 F.Supp. 2d 1098 (N.D. Cal. 2002). On September 20, 2002, in response to the District Court injunction in Clement, W.A. Duncan, Deputy Director of the CDC, issued a memorandum which instructed CDC facilities to permit inmates access to incoming mail containing internet generated material. Compl., ¶ 21. At the time this memorandum issued, Plaintiff's '0746 appeal was pending, awaiting Director Level Appeal review.

  On September 27, 2002, Defendant N. Grannis denied Plaintiff's Director Level Appeal stating that "internet generated materials [are] not allowed to inmates within the CDC." Compl., ¶ 22. Having exhausted all internal appeals processes, Plaintiff filed a complaint on April 13, 2004. Meanwhile, on April 20, 2004, the Ninth Circuit affirmed the District Court decision in Clement. 364 F.3d 1148, 1153 (9th Cir. 2004). The Court found the CDC internet policy unconstitutional and upheld the District Court injunction prohibiting the CDC from further enforcement of its internet policy. Id. at 1152. On July 14, 2004, Judge Lorenz granted Plaintiff's motion to proceed in forma pauperis, however, dismissed Plaintiff's complaint for failure to state a claim upon which relief could be granted. Plaintiff was given 45 days to file an amended complaint addressing the deficiencies in his initial pleading. On August 9, 2004, Plaintiff filed his First Amended Complaint which is the matter presently before this Court. Discussion

  Defendants move to dismiss Plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure arguing Plaintiff's complaint fails to state a claim upon which relief can be granted. A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhoades, 416 U.S. 232, 236 (1974).

  Where a plaintiff appears in propia persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bozelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to pro se civil rights complaint, however, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.

  1. Plaintiff's Request for Declaratory and Injunctive Relief

  Plaintiff requests declaratory and injunctive relief regarding Defendants' institutional policy which prohibits inmate access to internet generated legal materials. Specifically, Plaintiff asks the Court to declare Defendant's policy unconstitutional and to enjoin Defendants and their agents and employees from enforcing the policy. In response, Defendants allege that Plaintiff's request for declaratory and injunctive relief are moot in light of the District Court and Ninth Circuit decisions in Clement v. CDC and, therefore, must be dismissed. This Court is inclined to agree. "Generally, an action is mooted when the issues presented are no longer live and the parties lack a legally cognizable interest for which the courts can grant a remedy." Alaska Ctr. For Env't v. United States v. Forest Serv., 189 F.3d 851, 854 (9th Cir. 1999); see also Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003). A plaintiff's claim for declaratory judgment also cannot proceed if judicial pronouncement, as it would relate to the plaintiff, would be an advisory opinion prohibited by the Constitution's case or controversy requirement. McQuillon v. Schwarzenegger, 369 F.3d 1091 (9th Cir. 2004) (citing U.S. CONST. art. III); see also Preiser v. Newkirk, 422 U.S. 395, 401 (1975).

  Here, Plaintiff's request for declaratory and injunctive relief is moot in light of the District Court and Ninth Circuit decisions in Clement v. CDC, as the relief Plaintiff seeks has already been granted. In Clement, the Ninth Circuit affirmed a District Court decision, which held that a CDC policy that prohibited inmates from receiving internet generated materials was unconstitutional. Clement, 364 F.3d at 1153. The Court found that the CDC policy had no rational connection with the CDC's asserted penological interest. Id. at 1152. The Court also affirmed a District Court injunction which enjoined the CDC "from enforcing any policy prohibiting California inmates from receiving mail because it contained Internet generated information". Id. at 1153. The injunction applied to all prisons within the CDC, including Centinela State Prison, where Plaintiff is housed. Id. Accordingly, the issue upon which Plaintiff seeks declaratory judgment and injunctive relief has been ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.