The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AN AMENDED COMPLAINT OR NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ON COGNIZABLE CLAIMS THIRTY-DAY DEADLINE
FINDINGS AND RECOMMENDATION THAT REQUEST FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTIVE RELIEF BE DENIED
Plaintiff Michael Golden ("Plaintiff") is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Plaintiff filed this action on February 11, 2009.
"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). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a).
Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
II. Summary of Plaintiff's Federal Claims
Plaintiff states that on August 18, 2008, he appeared in Tulare County Superior Court to be arraigned on a misdemeanor violation for driving on a suspended license and an infraction violation for driving an unregistered vehicle. Plaintiff states that upon remand, he was arrested and placed in the custody of the Tulare County Sheriff's Department, and was housed in a detention facility until August 20, 2008. Plaintiff alleges that during that time his repeated requests for a confidential telephone call to his attorney were denied by various sheriff deputies. Plaintiff further alleges that he was also denied confidential telephone calls initiated by his attorney.
On August 20, 2008, Plaintiff was transported back to Tulare County Superior Court, where he entered a plea of no contest to a misdemeanor violation of driving without a license, and an infraction violation of driving an unregistered vehicle. Plaintiff was then sentenced to three days, with three days of credit for time served.
Plaintiff names County of Tulare, County Sheriff Bill Wittman and Does 1 - 50 as defendants. Plaintiff alleges violations of the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, conspiracy pursuant to 42 U.S.C. §1985, as well as various state law claims. Plaintiff seeks money damages and injunctive relief.
Plaintiff alleges a violation of his First Amendment rights to freedom of speech and association stemming from the denial of confidential telephone calls to and from his attorney.
"Prisoners have a First Amendment right to telephone access, subject to reasonable security limitations." Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir. 1998) (quoting Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1986). The constitutional right at issue is "the First Amendment right... to communicate with persons outside prison walls," and "[u]se of a telephone provides a means of exercising this right." Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (emphasis in original). A prison regulation that impinges on an inmate's constitutional right "is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254 (1987). First, "there must be a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it," and "the governmental objective must itself be a legitimate and neutral one." Id. A second consideration is "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 90 (internal quotations and citation omitted). A third consideration is "the impact accommodation of the asserted right will have on guards and other inmates, and on the allocation of prison resources generally." Id. "Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Id.
In the present case, Plaintiff has not alleged facts sufficient to state a cognizable First Amendment claim against any named defendant. Plaintiff alleges that he was not permitted to communicate confidentially with his attorney by phone. However, Plaintiff has not alleged a lack of alterative means. For example, it is not clear from reading Plaintiff's complaint whether Plaintiff was able to meet in person with his attorney during that time, nor has he alleged that this is an unreasonable alternative. There is no allegation that Plaintiff was held incommunicado with the outside world. Halvorsen 146 F.3d at 690, Vasquez, 302 F.3d at 1048. The Court will grant Plaintiff an opportunity to amend to allege further facts in support of his First Amendment claim if he so chooses.
Plaintiff alleges a violation of his Fourth Amendment right to be free from unlawful seizure of his person. "The Fourth Amendment is not triggered unless the state intrudes into an area in which there is a constitutionally protected reasonable expectation of privacy." United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) (internal quotation and citations omitted). "Such a constitutionally protected reasonable expectation of privacy exists only if (1) the [plaintiff] has an actual subjective expectation of privacy in the place searched and (2) society is objectively prepared to recognize that expectation. Id., (internal quotation and citations omitted), United States v. Davis, 932 F. 2d 752, 756 (9th Cir. 1991).
In the present case, Plaintiff has not alleged facts sufficient to demonstrate a violation of the Fourth Amendment. Plaintiff alleges that he was deprived of confidential telephone conversations with his attorney. Plaintiff's has not alleged that he participated in any phone conversation with his attorney that was in fact recorded or monitored, so ...