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Allah v. Vasquez

May 28, 2010

GIFT A.Z. DIVINE ALLAH, PLAINTIFF,
v.
P. L. VASQUEZ ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1)

I. Screening Requirement

Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff filed this action on October 15, 2009.*fn2

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).

"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)).

II. Plaintiff's Claims

Plaintiff names as defendants in this action the following individuals: P. L. Vasquez, Warden at Wasco State Prison; Ken Clark, Warden at the California Substance Abuse Treatment Facility at Corcoran; I.D. Clay, Warden at the Sierra Conservation Center in Jamestown; Warden Johnson at Avenal State Prison; and, Governor Schwarzenegger. Plaintiff appears to allege that defendants, or some of them, interfered with his legal mail, with the inmate grievance process, and with his access to the courts and also denied him adequate medical treatment.

A. Mail

Plaintiff alleges that defendant Wardens Vasquez, Clay, Johnson and Clark have "not answered documented outgoing legal mail." (Compl., p. 1.) Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). Prison officials may justifiably censor outgoing mail concerning escape plans, containing information about proposed criminal activity, or transmitting encoded messages. See Procunier v. Martinez, 416 U.S. 396, 413 (1974). Prison officials may also visually inspect outgoing mail to determine whether it contains contraband material that threatens prison security or material threatening the safety of the recipient. See Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995); Royse v. Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986). Prison officials are not permitted to review prisoners' legal papers for legal sufficiency before sending them to the court. See Ex Parte Hull, 312 U.S. 546, 549 (1941). Prison officials may, however, consistent with the First Amendment, (1) require that mail from attorneys be identified as such and (2) open such correspondence in the presence of the prisoner for visual inspection. See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Sherman v. Macdougall, 656 F.2d 527, 528 (9th Cir. 1981). "Mail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail." Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). A prison need not treat all mail sent to government agencies and officials as legal mail. See O'Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996).

Here, plaintiff fails to charge any of the named defendants with conduct that constitutes a deprivation of plaintiff's rights regarding his incoming or outgoing mail. Plaintiff's allegation is that the defendants have not "answered documented outgoing legal mail." They have no obligation to do so. The defendants may only be liable if they unjustifiably censor outgoing mail or improperly inspect incoming legal mail. There are no such allegations in this case. This claim must therefore be dismissed.

Further, liability may be imposed on supervisory defendants under § 1983 only if (1) the supervisor personally participated in the deprivation of constitutional rights or (2) the supervisor knew of the violations and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor v. Lst, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff does not allege facts indicating that the supervisory defendants participated in, or knew of and failed to prevent, the alleged wrongs.

B. Inmate Grievances

Plaintiff alleges that the wardens are aware of "CDCR malfeasance." Specifically, plaintiff alleges malfeasance on behalf of their subordinates, yet as a comradery of sorts not only the wardens but inmate appeals and the Director of Corrections, Region I. Appeal Coordinator Gov. Schwarzenegger, and the Health Care Receiver along with a host of ...


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