The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN THIRTY (30) DAYS (Doc. # 10)
Plaintiff Raul Sanchez Zavala ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for civil rights violations committed by federal actors. Plaintiff is incarcerated at the U.S. Penitentiary in Atwater, California ("USP-Atwater"). Plaintiff names Hector Rios (current warden), Dennis Smith (former warden), Mr. Bell (assistant warden), Ms. Gonzaga (former mailroom staff), Mr. Martinez (mailroom staff), Mr. Luke (mailroom staff), Mr. Capel (mailroom staff), Mr. Bucio (mailroom staff), Mr. Fisher (mailroom staff), Mr. Liwag (counselor), Mr. Coggins (counselor), Mr. Van Horn (counselor), Ms. Capel (counselor), Mr. Silva (counselor), Mr. Reyes (counselor), "Unknown A" (unit manager), "Unknown B" (unit manager), Robert E. McFadden (regional director), Harrell Watts (Bureau of Prisons Administrator for National Inmate Appeals), and the United States Department of Justice, Bureau of Prisons as defendants. For the reasons set forth below, the Court finds that Plaintiff's first amended complaint fails to state any cognizable claims. Accordingly, Plaintiff's first amended complaint will be dismissed, with leave to file a second amended complaint.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff claims that officials at USP-Atwater interfered with Plaintiff's mail. Plaintiff's allegations concern two separate incidents. In the first incident, Plaintiff complains that USP-Atwater officials interfered with Plaintiff's criminal appeal by not allowing Plaintiff to call his attorney and by rejecting mail from Plaintiff's attorney. In the second incident, Plaintiff complains that officials rejected a package from Plaintiff's trial attorney containing legal documents.
1. Plaintiff's Criminal Appeal
On September 12, 2006, Plaintiff arrived at USP-Atwater. (Compl. ¶ 30.) Sometime in late September or early October, Plaintiff called his attorney, Karen Lindholdt. (Compl. ¶ 31.) Lindholdt told Plaintiff that she did not want to speak with Plaintiff over a monitored telephone and instructed Plaintiff to schedule a "legal call" through his correctional counselor. (Compl. ¶¶ 32-33.) On September 26, 2006, Plaintiff requested to be scheduled for a legal call. (Compl. ¶ 35.) Plaintiff's request was denied on September 27, 2006 by Defendant Ms. Capel. (Compl. ¶ 35.)
In late September 2006, Lindholdt filed Plaintiff's first criminal appeal with the Ninth Circuit. (Compl. ¶ 37.) Lindholt also mailed a copy of the appeal to Plaintiff. (Compl. ¶ 38.) On October 18, 2006, Plaintiff wrote a letter to Lindholdt, but did not receive a response. (Compl. ¶ 36.) Plaintiff mailed a second letter to Lindholdt on October 25, 2006. (Compl. ¶ 39.) Plaintiff also made another request for a legal call. (Compl. ¶ 40.) On October 27, 2006, Defendant Silva denied Plaintiff's request for a legal call. (Compl. ¶ 41.) Plaintiff wrote a third letter to Lindholdt on October 31, 2006, but received no response. (Compl. ¶ 42.) On November 19, 2006, Plaintiff requested another legal call which was denied by Ms. Capel on November 20, 2006. (Compl. ¶ 43.) Plaintiff sent another "cop-out"*fn1 to Silva on December 17, 2006, but did not receive a response. (Compl. ¶ 44.)
In early December 2006, Plaintiff received two priority legal mail envelopes from Lindholdt that had been opened. (Compl. ¶ 45.) The envelopes contained a letter dated November 22, 2006. (Doc. ¶ 46.) Plaintiff mailed a letter back to Lindholdt on December 26, 2006. (Compl. ¶ 48.) On January 2, 2007, Plaintiff mailed a letter to the Ninth Circuit complaining that his legal and confidential mail had been opened. (Compl. ¶ 48.) The opened mail contained a letter from Lindholdt and copies of briefs filed in the Ninth Circuit concerning Plaintiff's criminal appeal. (Compl. ¶ 49.) The letter stated that Lindholdt had mailed the briefs to Plaintiff previously, but they were returned because the box that was sent was too heavy under prison standards. (Compl. ¶ 50.)
Plaintiff complains that after he reviewed the appellate briefs, he noticed several factual deficiencies and inaccuracies. (Compl. ¶ 52.) Plaintiff complains that his input during the appeal process was crucial because Lindholdt was not present during Plaintiff's trial and the trial transcripts were inaccurate. (Compl. ¶ 52.) Plaintiff further complains that because the brief had already been filed, Plaintiff was unable to file a supplemental brief. (Compl. ¶ 54.) Plaintiff mailed another letter to Lindholdt on January 8, 2007. (Compl. ¶ 55.) Plaintiff also attempted to file an amended brief with the Ninth Circuit, but the Ninth Circuit did not consider Plaintiff's amended brief. (Compl. ¶ 56.)
On February 15, 2007, Plaintiff began inquiring about USP-Atwater's mailroom policy by sending a "cop-out" to the mail room. (Compl. ¶ 57.) On March 8, 2007, Plaintiff send a cop-out to Defendant Ms. Gonzaga asking whether any of Plaintiff's mail had been rejected. (Compl. ¶ 58.) Plaintiff received a response that stated that Plaintiff is not entitled to notice when his mail is rejected. (Compl. ¶ 58.) Plaintiff send another cop-out on April 6, 2007 and received a response that stated that no mail rejections had been found. (Compl. ¶ 59.) On April 26, 2007, Plaintiff sent a cop-out to Defendant Dennis Smith but did not receive a response. (Compl. ¶ 60.) Plaintiff filed an "Informal Resolution Form" (also known as a "BP8") on May 10, 2007. (Compl. ¶¶ 61-62.) Plaintiff filed cop-outs requesting a status update on his BP8 but did not receive any responses. (Compl. ¶¶ 63-64.) On June 22, 2007, Defendant Reyes and "Unknown A" denied Plaintiff's BP8. (Compl. ¶ 65.) On July 1, 2007, Plaintiff filed a cop-out for a BP9*fn2 because "Plaintiff's request for a BP9 was intentionally slow walked by USP Atwater staff."*fn3 (Compl. ¶ 66.) Plaintiff filed a BP9 on July 6, 2007. (Compl. ¶ 67.) Smith denied Plaintiff's BP9 on July 27, 2007. (Compl. ¶ 68.) Plaintiff filed a BP10 on August 12, 2007, which was denied on August 30, 2007 by Defendant McFadden. (Compl. ¶¶ 69-70.) Plaintiff filed a BP11 on September 21, 2007 which was denied by Defendant Watts on November 28, 2007. (Compl. ¶¶ 71-72.)
2. Plaintiff's Pre-trial and Trial Case File
Plaintiff complains that Defendants interfered with the delivery of a package from Plaintiff's trial attorney that contained pre-trial and trial documents. On October 10, 2007, Plaintiff gave Defendant Gonzaga an "Authorization to Receive Package" form. (Compl. ¶ 74.) Gonzaga told Plaintiff that he did not need an authorization form, laughed at Plaintiff, and refused to give Plaintiff the form back. (Compl. ¶ 74.) Plaintiff sent a cop-out to Defendants Smith and Gonzaga on October 10, 2007. (Compl. ¶ 75.) On October 12, 2007, Plaintiff mailed a letter to his trial attorney, Mr. Cikutovich, asking for his pre-trial and trial case file. (Compl. ¶ 76.) Plaintiff received responses from Gonzaga and Smith that reiterated the prison's policy that legal mail packages do not need to be pre-approved and Plaintiff did not need to fill out an authorization form before hand. (Compl. ¶¶ 78-79, Ex. FF.) Plaintiff filed a motion with the United States District Court for the Eastern District of Washington asking the Court to compel Mr. Cikutovich to release Plaintiff's trial court file. (Compl. ¶ 80.) Plaintiff also requested a legal phone call with Defendants Spencer and Reyes but did not receive a response. (Compl. ¶ 81.)
Around March 2008, Plaintiff noticed that his name was on the "Receiving and Departure" ("R&D") department's "call-out list." (Compl. ¶¶ 82-84.) Plaintiff went to the R&D department expecting to receive a package. (Compl. ¶¶ 84-85.) However, when Plaintiff arrived, the officer told Plaintiff that it was a mistake and Plaintiff was told to return to his "unit." (Compl. ¶ 86.)
On May 19, 2008, Plaintiff received an order from the Eastern District of Washington requesting Mr. Cikutovich to respond to Plaintiff's motion within 20 days. (Compl. ¶¶ 87-90.) When Plaintiff did not hear back within the deadline, he wrote multiple letters to the Eastern District of Washington complaining about the lack of a response. (Compl. ¶¶ 91-95.) On July 16, 2008, Plaintiff received a response from the Eastern District of Washington denying Plaintiff's motion as moot. (Compl. ¶¶ 96-97.) The court stated that "Defendant's failure to receive the requested material does not appear to be related to anything his former attorney has done or failed to do." (Compl. ¶ 97.) Plaintiff later learned that Mr. Cikutovich mailed the trial court documents to Plaintiff on February 19, 2008. (Compl. ¶ 104.) The documents were returned to Mr. Cikutovich marked "Receiver Did Not Want" and "Package Authorization Not on File." (Compl. ¶ 105.) Cikutovich attempted to call USP-Atwater several times and was told to leave a message with Plaintiff's counselor, but did not receive any responses. (Compl. ¶ 106.)
Plaintiff directed a BP8, a BP9, and a BP10 to Defendants VanHorn, "Unknown B," Smith, Bell, and McFadden, which were denied. (Compl. ¶¶ 109-119.) Plaintiff directed cop-outs to Jesse Gonzalez and Defendant Van Horn which were ignored. (Compl. ¶¶ 112-117.) Plaintiff's motion for reconsideration with the Eastern District of Washington was denied sometime around November 26, 2008. (Compl. ¶ 120.) Plaintiff sent a cop-out to Defendant Liwag complaining about the mail rejections, but was told that "Plaintiff did not have any BP 328 forms on file."*fn4 (Compl. ¶¶ 120-121.) Plaintiff filed a BP11 with Defendant Watts that was denied on July 8, 2009. (Compl. ¶¶ 123, 126.)
Plaintiff learned that the staff in the mailroom included J. Lopez (not named as a defendant), as well as Defendants R. Martinez and M. Bucio. (Compl. ¶ 128.)