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K'Napp v. Adams

May 7, 2009

ERIC CHARLES RODNEY K'NAPP, PLAINTIFF,
v.
D.G. ADAMS, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND CERTAIN DEFENDANTS

(Doc. 16)

I. FINDINGS

A. Procedural History

Eric Charles Rodney K'napp ("Plaintiff") is a state prisoner proceeding pro se. The Court granted Plaintiff's motion to proceed in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on November 22, 2006. (Doc. 1.) On December 11, 2006, Plaintiff filed the First Amended Complaint which was screened and dismissed with leave to amend. (Docs. 9, 15.) On November 13, 2008, Plaintiff filed a Second Amended Complaint which is presently before the Court. (Doc. 16.)

B. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

C. Plaintiff's Second Amended Complaint

Plaintiff is a state prisoner, currently housed at Kern Valley State Prison in Delano, California. The acts Plaintiff complains of occurred at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. Plaintiff names thirty-five defendants to wit: CDCR Secretaries Jeanne Woodford and James Tilton; SATF Warden Darrel G. Adams; Inmate Appeals Coordinator Nola Grannis; J. Burleson and T. Surges in the inmate appeals under Grannis; CDCR Inspector General Matthew Cate; SATF Associate Wardens Ken, Clark D. Foulks, L. Hense, S. Sherman, and T. Wan; SATF Appeals Coordinators C.L. Cooper, V.R. Garcia, R. Hall, and E. McCant; Captain D. Cuevas; SATF mail-room workers R. Guerrero, K. Meaders, K. Motty, and Does 1-5; SATF line guards P. Esparza, B. Johnson, A. Larios, and Does 6-10; SATF law library supervisor P. Domen; Sergeants D. L. Henson and C. Pugliese; Lieutenants B. Odle and J.T. Tucker; Captain S. Ortiz; Law Library Supervisor R. Rollins; and Classification Supervisor D. Selvy. Plaintiff delineates three claims against various of the defendants.

Plaintiff's first claim is against Defendants Adams, Burleson, Cate, Clark, Cooper, Does 1 through 10, Foulks, Garcia, Grannis, Guerrero, Hall, Hense, Meaders, Motty, Ortiz, Pugliese, Sherman, Smith, Surges, Tilton, Wan, and Woodford. In the title under his first claim, Plaintiff alleges that these defendants "violated at least state law, 42 U.S.C. § 1985, 18 U.S.C. §§ 241 and 242, and the U.S. Constitution's First and Fourteenth Amendments by causing and/or allowing Plaintiff to suffer a continuous campaign of arbitrary, capricious, retaliatory, and otherwise unlawful deprivations and violations of guaranteed and protected rights relating to mail for no valid reason serving a legitimate penological objective pursuant to and in furtherance of the pervasive custom and/or policy of thus oppressing and otherwise abusing SNY prisoners throughout the CDCR and at SATF as caused and/or allowed by defendants Adams, Cate, Clark, Foulks, Hense, Sherman, Tilton, Wan, and Woodford. (Doc. 16, pg. 21.) Under this claim Plaintiff alleges a series of events wherein his outgoing and incoming mail was variously delayed. (Id., pp. 21-42.) Plaintiff also alleges that thirty pages of internet generated material were taken from an incoming letter (Id., pg. 36); that his "confidential mail" was opened, read, and delayed (Id., pg. 39); that he only received the May 2005 issue of Prison Legal News (Id., pg. 42) and that the delay of his correspondence variously resulted in rejection of his inmate appeals for untimeliness (Id., pp. 21-42).

Plaintiff's second claim is against Defendants Adams, Cooper, Cuevas, Domen, Esparza, Foulks, Garcia, Grannis, Hall, Henson, Johnson, Larios, Murberger, Odle, Rollins, Selvy, Sherman, Smith, Tilton, Tucker, and Wan. In the title under his second claim Plaintiff alleges that these defendants "violated at least state law, 42 U.S.C. § 1985, 18 U.S.C. §§ 241 and 242, the Privacy Act at 5 U.S.C. § 552a, and the U.S. Constitution's First, Fourth, Eighth, and Fourteenth Amendments by causing and/or allowing Plaintiff to suffer a retaliatory campaign of arbitrary, capricious, and otherwise unlawful oppression during which he was denied due process and equal protection of law in deprivations of guaranteed liberty, property, and privileges, in denials of meaningful and unimpeded access to the courts, in falsified disciplinary action, in destruction of personal property, in denial of guaranteed visitation rights, and in retaliatory transfer to another prison all for no valid reasons serving legitimate penological objectives pursuant to and in furtherance of the pervasive custom and/or policy of thus oppressing and otherwise abusing SNY prisoners throughout the CDCR and at SATF - particularly in retaliation for their lawful exercise of protected rights - as caused and/or allowed by defendants Adams, Cuevas, Domen, Foulks, Sherman, Tilton, an Wan." (Doc. 16, pg. 43.) Under this claim Plaintiff alleges a series of events that took place in retaliation for his filing of inmate appeals -- i.e. Johnson issuing a "falsified disciplinary write-up for having a clothesline inside his cell" (Id., pg. 50); he was limited to a sixty minute non-contact visit with a visitor who had come over 250 miles to see him (Id., pg. 51); he was deemed a threat and placed in Ad-Seg until transferred (Id., pp. 52-53); and Esparza intentionally damaged Plaintiff's personal typewriter (Id., pg. 53).

Plaintiff's third claim is against Defendants Adams, Burleson, Clark, Cooper, Cuevas, Does 1-5, Foulks, Garcia, Grannis, Hall, Hense, McCant, Motty, Murberger, Odle, Ortiz, Pugliese, Sherman, Surges, Tilton, Wan, and Woodford. In the title under his third claim Plaintiff alleges that these defendants "violated at least state law, 42 U.S.C. § 1985, 18 U.S.C. §§ 241 and 242, and the U.S. Constitution's First and Fourteenth Amendments by causing and/or allowing Plaintiff to suffer a continuous campaign of arbitrary, capricious, and otherwise unlawfully oppressive violations and deprivations of guaranteed and protected rights, liberty, due process, and equal protection - particularly under state law in trying to petition the government for a redress of grievances so as to gain meaningful and unimpeded access to the courts - for no valid reasons serving legitimate penological objectives pursuant to and in furtherance of the CDCR's pervasive 'Code of Silence' custom and/or policy of thus oppressing and otherwise abusing SNY prisoners throughout the California Prison System and at SATF - especially to frustrate, hinder, impede, and otherwise obstruct and prevent such prisoners from getting the CDCR's systemic problems satisfactorily and/or otherwise effectively identified, addressed, and resolved at the lowest possible levels - as caused and/or allowed by Defendants Adams, Clark, Foulks, Grannis, Hense, Sherman, Tilton, Wan, and Woodford." (Doc. 16, pg. 54.) Under this claim Plaintiff complains of the processing and handling of his inmate appeals/grievances.

The Court's prior screening order provided Plaintiff the applicable standards for his claims. The Court finds that some of Plaintiff's claims are cognizable, but some of his claims suffer from uncorrectable deficiencies so as to require dismissal with prejudice.*fn1

D. Plaintiff's Claims

1. Supervisory Personnel

Plaintiff names the following supervisory prison personnel: CDCR Secretaries Jeanne Woodford and James Tilton; SATF Warden Darrel G. Adams; Inmate Appeals Coordinator Nola Grannis; J. Burleson and T. Surges in the inmate appeals under Grannis; CDCR Inspector General Matthew Cate; SATF Associate Wardens Ken, Clark D. Foulks, L. Hense, S. Sherman, and T. Wan; SATF Appeals Coordinators C.L. Cooper, V.R. Garcia, R. Hall, and E. McCant; Captain D. Cuevas; SATF law library supervisor P. Domen; Sergeants D. L. Henson and C. Pugliese; Lieutenants B. Odle and J.T. Tucker; Captain S. Ortiz; Law Library Supervisor R. Rollins; and Classification Supervisor D. Selvy.

Supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under section 1983 based on a theory of supervisory liability, plaintiff must allege some facts that would support a claim that supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Although federal pleading standards are broad, some facts must be alleged to support claims under section 1983. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168 (1993).

At the end of each of his counts under each of his claims, Plaintiff concludes that he "personally informed each of the following defendants of the above events and circumstances -and/or they were otherwise made personally aware thereof - but they refused or otherwise failed to take appropriate corrective action on Plaintiff's behalf despite possessing sufficient rank, responsibility, and opportunity to do so...." (Doc. 16, pp. 27- 70.) However, "[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). "Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not." George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).

Concluding that a supervisory defendant knew of events (either via inmate appeals or personal communication), but did not take corrective action is not sufficient to show that a specific defendant's inaction caused an alleged violation. Thus, Plaintiff's claims that CDCR Secretaries Jeanne Woodford and James Tilton; SATF Warden Darrel G. Adams; Inmate Appeals Coordinator Nola Grannis; J. Burleson and T. Surges in the inmate appeals under Grannis; CDCR Inspector General Matthew Cate; SATF Associate Wardens Ken, Clark D. Foulks, L. Hense, S. Sherman, and T. Wan; SATF Appeals Coordinators C.L. Cooper, V.R. Garcia, R. Hall, and E. McCant; Captain D. Cuevas; SATF law library supervisor P. Domen; Sergeants D. L. Henson and C. Pugliese; Lieutenants B. Odle and J.T. Tucker; Captain S. Ortiz; Law Library Supervisor R. Rollins; and Classification Supervisor D. Selvy were aware of his factual allegations, but refused or otherwise failed to take appropriate corrective action on Plaintiff's behalf should be dismissed as Plaintiff has not sufficiently alleged facts to indicate that any of the defendants mentioned in this section personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black at 646.

2. Violation(s) of the California Code of Regulations

Throughout all three of his claims, Plaintiff restates excerpts of Title 15 of the California Code of Regulations. The existence of regulations such as these governing the conduct of prison employees does not necessarily entitle Plaintiff to sue civilly to enforce the regulations or to sue for damages based on the violation of the regulations. The Court has found no authority to support a finding that there is an implied private right of action under Title 15, and Plaintiff provides none. Given that the statutory language does not support an inference that there is a private right of action, the Court finds that Plaintiff is unable to state any cognizable claims upon which relief may be granted under Title 15. All such claims are properly dismissed.

3. First Amendment

In all three of his claims, Plaintiff alleges that his constitutional rights under the First Amendment were violated.

a. Retaliation

Plaintiff's first and second claims allege that he was retaliated against for his (and his mother's)*fn2 actions complaining of the conditions and abuses in prison -- including filing prisoner grievances and lawsuits.

Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Adverse action is action that "would chill a person of ordinary firmness" from engaging in that activity. Pinard v. Clatskanie School Dist., 467 F.3d 755, 770 (9th Cir. 2006); White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000); see also Lewis v. Jacks, 486 F.3d 1025 (8th Cir. 2007); see also Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007); Bennett v. Hendrix, 423 F.3d 1247, 1250-51 (11th Cir. 2005); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005); Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

In his first claim, Plaintiff alleges that he was subjected to retaliation by Pugliese, Smith, Motty, Guerrero, Meaders, Johnson, and Does 1-5 denying him indigent correspondence supplies, delaying his mail, obstructing his outgoing mail, denying him all but the May 2005 issue of his subscription of Prison Legal News. Plaintiff alleges that the acts of retaliation complained of did not reasonably advance any legitimate correctional objective. (Doc. 16, pg. 21.)

In his second claim, Plaintiff alleges that he was subjected to retaliation by Johnson's issuing a false "disciplinary write-up for having a clothesline inside his cell" (Id., pg. 50); by Adams' and Cuevas' instructing CDCR personnel at SATF to limit Plaintiff to a sixty minute non-contact visit with a visitor who had come over 250 miles to see Plaintiff (Id., pg. 51); by Larios' falsely telling Adams, Cuevas, Smith, Tucker, and other CDCR personnel that Plaintiff was a threat to safety and security at SATF as Plaintiff had been housed in the same prison as Larios' brother in 2003 (Id., pg. 52); by Tucker who, based on Larios' false accusations, issued an ad-seg confinement order falsely alleging that Plaintiff presented an immediate threat to safety and security at SATF such that Plaintiff was handcuffed, subjected to an unclothed body search, placed in a small cage, and subsequently placed in an ad-seg cell where the exterior window had been painted over, all personal property, liberty, and privileges were taken away (Id., pg. 52); by Smith who retained Plaintiff in ad-seg (Id., pp. 52-53); by Esparza who intentionally damaged Plaintiff's personal typewriter (Id.); and by Sherman, Smith, and Selvy who put Plaintiff up for a retaliatory prison transfer.

Plaintiff does not allege any retaliation in his third claim.

Thus, Plaintiff states cognizable claims for retaliation against Pugliese, Smith, Motty, Guerrero, Meaders, Johnson, Adams, Cuevas, Tucker, Sherman, Selvy, and Does 1-5.

b. Mail

In his first claim Plaintiff alleges a series of events wherein Motty, Pugliese, Smith, Guerrero, Cooper, Garcia, and Hall variously delayed his mail (Doc. 16, pp. 21-42); Meaders seized thirty pages of internet generated material from an incoming letter (Id., pg. 36); his "confidential mail" was opened, read, and delayed by Does 1 - 5 (Id., pg. 39); Johnson, Meaders, Motty, Pugliese, and Does 1-5 caused him to only receive the May 2005 issue of his subscription of Prison Legal News (Id., pg. 42); and the delay of his correspondence variously resulted in rejection of his inmate ...


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