United States District Court, S.D. California
October 7, 2005.
FLOYD H. NELSON Plaintiff,
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
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
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,
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 resolved by the Ninth Circuit decision in Clement and any
further declaratory or injunctive ruling by this Court would
constitute an advisory opinion. As such, this Court recommends
that Plaintiff's request for declaratory and injunctive relief be
2. Plaintiff's Allegations Regarding Compensatory Damages
Plaintiff seeks compensatory damages from Defendants, alleging
that Defendants' enforcement of the CDC policy prohibiting inmate
access to internet generated materials constitutes a violation of
his First Amendment right. In response, Defendants allege that
they are entitled to qualified immunity and therefore, are not
subject to civil liability in connection with Plaintiff's
Qualified immunity shields government officials performing
discretionary functions from liability for civil damages unless
their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known. Anderson
v. Creighton, 483 U.S. 635, 640 (1987); Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); Mitchell v. Forsyth, 472 U.S. 511,
Under Saucier v. Katz, the Court established a two step
approach for addressing claims of qualified immunity.
533 U.S. 194 (2001). The first step in the qualified immunity analysis is
"to consider the materials submitted in support of, and in
opposition to, summary judgment, in order to decide whether a
constitutional right would be violated if all facts are viewed in
favor of the party opposing summary judgment." Jeffers v.
Gomez, 267 F.3d 895, 909 (9th Cir. 2001). "If no constitutional
violation is shown, the inquiry ends." Cunningham v. City of
Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003). On the other hand,
if "the parties' submissions" create a triable issue of whether a
constitutional violation occurred, the second question is
"whether the right was clearly established when "it would be
clear to a reasonable [government actor] that his conduct was
unlawful in the situation he confronted." Id. at 202.
In a suit against an officer for an alleged violation of a
constitutional right, the requisites of a qualified immunity
defense must be considered in proper sequence. Where the
defendant seeks qualified immunity, a ruling on that issue should
be made early in the proceedings so that the costs and expenses
of trial are avoided where the defense is dispositive."
Saucier, 533 U.S. at 199-201 (2001). "Qualified immunity is `an
entitlement not to stand trial or face the other burdens of
litigation.'" Saucier, 533 U.S. 201 (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). The privilege is "an
immunity from suit rather than a mere defense to liability; and
like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Mitchell,
472 U.S. at 526. Thus, the Supreme Court has "repeatedly  stressed the
importance of resolving immunity questions at the earliest
possible state in litigation." Hunter v. Bryant, 502 U.S. 224,
227 (1991) (per curiam).
A. Do the Facts Alleged by Plaintiff Demonstrate a Violation
of Constitutional Right
To determine whether a government official is entitled to
qualified immunity, the court first must consider the threshold
question, which is: Taken in the light most favorably to the
party asserting the injury, do the facts alleged show that the
official's conduct violated a constitutional right? Saucier,
533 U.S. at 201 (2001); see also Robinson v. Solano County,
278 F.3d 1007, 1013 (9th Cir. 2002) (en banc). In performing the
initial inquiry, the Court is obligated to accept the facts as
alleged by the non-moving party, but not necessarily their application of the law to the
facts. Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th
Cir. 2004). The issue is not whether the non-moving party states
a claim for a violation of their Constitutional rights, but
rather whether the officers actually violated a constitutional
right. Id. (emphasis original). Cf. Saucier, 533 U.S. at 201
(holding that the "threshold inquiry," assuming as true the facts
alleged by the injured party, is whether the "officer's conduct
violated a constitutional right[.]"). If no constitutional right
was violated, the inquiry is at an end, and the official is
entitled to qualified immunity. Saucier, 533 U.S. at 201; see
also Robinson, 278 F.3d at 1013.
Here, Plaintiff alleges that, by denying access to internet
generated legal materials, Defendants violated his
First Amendment constitutional rights. This Court is inclined to agree.
In Clement v. CDC, the Ninth Circuit held that a CDC policy
which prohibited inmates from receiving internet generated
materials was unconstitutional. Clement, 364 F.3d at 1153. The
Ninth Circuit held that the CDC's blanket prohibition of
internet-based materials had no rational connection with the
penological interests which the policy aimed to protect. Id. at
1152. In light of the decision in Clement, and viewing the
facts most favorably to Plaintiff, this Court finds that
Defendants' prohibition of internet generated legal materials
constitutes a violation of Plaintiff's First Amendment rights.
That the District Court decision in Clement issued after
Defendants' alleged conduct does not change the fact that
Plaintiff suffered a constitutional violation. See U.S. v.
Booker, 125 S.Ct. 738, 369 (2005) (applying holding on
constitutional rights retroactively to "all cases on direct
review"); see also Griffith v. Kentucky, 479 U.S., 314, 328
(1987) ("A new rule for conduct of criminal prosecution is
applied retroactively to all cases . . . pending on direct review
or not yet final, with no exception for cases in which the new
rule constitutes a `clear break' with the past").
b. Was the Constitutional Right Clearly Established
Under the Saucier Analysis, once a Court determines that a
constitutional violation has occurred, the "next . . . step is to
ask whether the [constitutional] right was clearly established."
Saucier, 533 U.S. at 201. This is a specific, not a general
inquiry and the plaintiff bears the burden of showing that the
right allegedly violated was clearly established. See Collins v.
Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996). "The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation confronted." Saucier, 533 U.S. at 202. "If the controlling law is not
clearly established, a reasonable person would not be expected to
know how to structure his conduct in order to avoid liability."
Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir. 1991)
(citing Todd v. United States, 849 F.2d 365, 368-69 (9th Cir.
A right is clearly established "[i]f the only reasonable
conclusion from binding authority [was] that the disputed right
existed." Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir.
1997). "The contours of the right must be sufficiently clear that
[at the time the allegedly unlawful action is taken] a reasonable
official would understand that what he was doing violates that
right." Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994)
(quoting Anderson, 483 U.S. at 640). For a right to be clearly
established, "the very action in question" need not "ha[ve]
previously been held unlawful"; instead, the "unlawfulness must
be apparent" in light of pre-existing law. Anderson,
483 U.S. at 640. "If the [defendant's] mistake as to what the law requires
is reasonable, however, the official is entitled to the qualified
immunity defense." Id. at 2158. Qualified immunity protects
"all but the plainly incompetent or those who knowingly violate
the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Here, Plaintiff alleges that his right to access internet
generated materials is clearly established. To support his
allegations, Plaintiff cites to Procunier v. Martinez,
416 U.S. 396 (1974), and Prison Legal News v. Cook, 283 F.3d 1145, 1149
(9th Cir. 2001), for the dual propositions that inmates'
First Amendment rights survive incarceration and that inmates' have a
constitutional right to receive mail. Plaintiff also refers this
Court to an uncited, unpublished order allegedly issued by the
Del Norte Superior Court which states, "E-mail or other
internet-related material may be received by inmates if sent to
the prison via U.S. mail. All internet related materials received
by way of U.S. mail shall be treated as non-confidential mail and
shall be governed by CCR § 3130 et. seq." Opp. to Mot. to
Dismiss, pg. 5, In. 19-24. Relying on these cases and decisions,
Plaintiff asserts that his constitutional right to access
internet generated materials was clearly established and
concludes that Defendants are not entitled to qualified immunity.
The Court disagrees.
The District Court and Ninth Circuit decisions in Clement
constitute this Circuit's first articulation of prison inmates'
right to access internet generated material. Prior to April 20,
2004, the date upon which the Ninth Circuit decision in Clement
issued, the California Court of Appeal decision in In re Aaron Collins, was the controlling precedent on the issue of an
inmate's right to access internet generated materials. In In re
Aaron Collins, the Court upheld a CDC policy which prohibited
inmate access to internet generated materials. In re Aaron
Collins, 86 Cal. App. 4th 1176, 1186 (Cal.Ct.App. 2001). The
Court found that the CDC policy was rationally related to
legitimate penological interests and therefore did not violate
inmates' First Amendment rights. Id. Relying on the decision in
In re Aaron Collins, the CDC issued the 2001 Memorandum to
state prisons and personnel which reaffirmed the CDC policy that
prohibited inmates from receiving internet generated materials.
Compl., ¶ 12.
Under these circumstances, the California Court of Appeals
decision in In re Aaron Collins and the 2001 Memorandum would
lead a reasonable law enforcement officer to believe that
enforcement of the CDC policy prohibiting inmate access to
internet materials was proper and constitutional. Prior to the
decision in Clement, a reasonable law enforcement officer would
not understand that such conduct was "unlawful in the situation
confronted". Accordingly, this Court finds that prior to the
decision in Clement, prison inmates' Constitutional right to
access internet generated material was not clearly established.
As a result, Defendants would be entitled to qualified immunity
with regard to allegations 2(a) throught 2(g) in Plaintiff's
First Amended Complaint. The Court recommends that these
allegations be dismissed without prejudice and with leave to
Although the foregoing analysis resolves the issue of qualified
immunity in regard to conduct occurring before the District Court
decision in Clement, this Court must still determine whether
any alleged conduct occurring after the decision in Clement
gives rise to civil liability. Specifically, the Court must
consider whether Defendant Grannis's decision regarding the
denial of the Director Level Appeal is entitled to qualified
Just as Plaintiff's request for declaratory and injunctive
relief before this Court was moot in light of the District Court
decision in Clement, Plaintiff's Director Level Appeal was also
moot in light of the District Court decision in Clement,
because the relief Plaintiff sought from the Director Level
Appeal had already been granted through the District Court
injunction in Clement. As no additional relief could be
granted, Defendant Grannis had no choice but to deny Plaintiff's
Director Level Appeal. Although Defendant Grannis's rationale for
denying the Director Level Appeal is inconsistent with the
Court's analysis, his decision regarding the appeal was
ultimately correct and his erroneous reasoning was harmless. Furthermore, since there is no legal entitlement to a
grievance procedure, Plaintiff's allegations regarding Defendant
Grannis's Director Level Appeal Denial does not state a claim
upon which relief can be granted. See Mann v. Adams,
855 F.2d 639, 640 (9th Cir. 1988) (holding that "there is no legitimate
claim of entitlement to a grievance procedure"); see also
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (prison
official's involvement and actions in reviewing and/or
investigating prisoner's administrative appeal not a basis for
liability under a § 1983 action).
Since Plaintiff's fails to allege a violation of a clearly
established constitutional right, the Court finds that Defendant
Grannis is entitled to qualified immunity.
3. Plaintiff's Allegations Regarding Punitive Damages
In addition to compensatory damages, Plaintiff seeks punitive
damages for Defendants' alleged violation of his constitutional
rights. Punitive damages are available under 42 U.S.C. § 1983.
Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 17 (1991).
Punitive damages are assessed against a defendant to further
society's interest in punishing and deterring certain conduct
that invades upon the rights of others. See Smith v. Wade,
461 U.S. 30, 54 (1983) ("[S]ociety has an interest in deterring and
punishing all intentional or reckless invasions of the rights of
others"). Punitive damages may be available even in circumstances
where the plaintiff is unable to show compensable injury. Id.
at 55 n. 21; Davis v. Mason Co., 927 F.2d 1473, 1485 (9th Cir.
1991). To support such an award, the jury must find either that
the defendant acted with an evil motive or demonstrated reckless
or callous indifference to the constitutional rights of the
plaintiff. Smith, 461 U.S. at 56; Dubner v. City and County of
San Francsico, 266 F.3d 959, (9th Cir. 2001); Mitchell,
75 F.3d at 527 n. 7; Morgan v. Woessner, 997 F.2d 1244, 1255 (9th
For the reasons set forth above, Defendants are entitled to
qualified immunity and are not subject to punitive damages in
connection with the present complaint. Moreover, even if
Defendants were not entitled to qualified immunity, Plaintiff's
complaint fails to allege facts or circumstances which would
justify the award of punitive damages. Specifically, Plaintiff's
First Amended Complaint fails to state that Defendants "acted
with an evil motive or demonstrated reckless or callous
indifference to the constitutional rights of the plaintiff." As
such, the Court recommends that Plaintiff's request for punitive
damages be DENIED. Conclusion
For the reasons set forth above, the Court recommends that
Defendants' Motion to Dismiss be GRANTED without prejudice. To
state a viable federal complaint under 35 U.S.C. § 1983,
Plaintiff must allege specific instances and events in which
Defendant violated a clearly established constitutional right.
This report and recommendation will be submitted to the
United States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Any party may file written
objections with the court and serve a copy on all parties by
October 28, 2005. The document should be captioned "Objections
to Report and Recommendation." Any reply to the objections shall
be served and filed by November 11, 2005. The parties are
advised that failure to file objections within the specified time
may waive the right to raise those objections on appeal of the
Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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