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Anderson v. Debritz


July 2, 2010


The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge



On May 5, 2010, plaintiff Rodolfo C. Anderson ("Plaintiff"), a California prisoner incarcerated at Kern Valley State Prison and proceeding pro se, filed a civil rights complaint ("Complaint") pursuant to 42 U.S.C. § 1983. (Compl. at 1.) For the reasons discussed below, the Complaint merits dismissal with leave to amend.


Plaintiff's Complaint relates to straightforward events that occurred while Plaintiff was incarcerated at California State Prison, Los Angeles County ("CSPLAC") in Lancaster, California. (Compl. at 3.) The Complaint names four defendants:

(1) Correctional Officer Debritz ("Debritz"); (2) Correctional Lieutenant Cox ("Cox"); (3) Kylie J. Thompson, a psychiatric therapist ("Thompson"); and (4) Feldman, a clinical social worker ("Feldman") (collectively "Defendants"). (Id. at 3-4.) Each defendant is sued in his or her individual capacity alone. (Id.)

Plaintiff alleges that from "June 2008 to October 21, 2008," he "authored a book titled 'Kellie White' and later re-titled 'A Moth to a Flame.'" (Compl. at 5.) He claims that the "book was a fictional book depicting a female staff member working in a men's prison." (Id.) Plaintiff does not elaborate any further on the nature of the book.

Plaintiff asserts that Defendant Thompson "was assisting [him] with editing of said book[ and] agreed to keep the book in a safe and secured location until she would return it to [him] upon [his] request, however, . . .[she has] not returned [Plaintiff's] book in almost two years." (Compl. at 8.)

Plaintiff contends that the prison security staff "must have felt that the book was describing actual events" at CSP-LAC. (Compl. at 5.) Plaintiff conspicuously makes no mention of what may have led prison security to harbor such a belief.

On or about October 21, 2008, Plaintiff was placed in administrative segregation. (Compl. at 8.) While Plaintiff was in administrative segregation, he states that Defendant Feldman "came to see [him] with a message from [Defendant Thompson], telling [him] among others, that she was alright. At that time[, Plaintiff] proceed[ed] to give the only copy of the second part of [his] book to defendant Feldman with the assurance that she will give the second part of the book to defendant Thompson[ and] . . . return[ it] to [him] later upon request." (Id. at 9.)

On or about January 9, 2009, Plaintiff asserts that Defendant Debritz confiscated his book and informed Plaintiff of an "on going investigation into overfamiliarity with staff," which is also the reason Plaintiff was placed in administrative segregation. ( 5, 8.) Plaintiff claims Defendant Debritz failed to provide Plaintiff with a "confiscation receipt." (Id.)

Thereafter, Defendant Cox interviewed Plaintiff regarding the investigation, "was in possession of [Plaintiff's] book," and "promised to return said book on completion of the investigation if [Plaintiff] were to 'help him with the investigation.'" ( 8.) Plaintiff alleges that Defendant Cox stated that if Plaintiff did not assist him with the investigation, "he would see to it that '[Plaintiff] regret it.'" (Id.)

Based upon the above facts, Plaintiff effectively advances two claims. First, Plaintiff asserts a due process violation of the Fourteenth Amendment for impounding his book without a "confiscation receipt" and without returning it. (Compl. at 5.) Second, Plaintiff asserts a violation of the First Amendment because Defendants Thompson and Feldman "were entrusted to secure" Plaintiff's book, but failed to return it. (Id.) Plaintiff seeks return of his book, $35,000 in compensatory and punitive damages from each defendant, and various forms of declaratory and injunctive relief. (Id. at 6, 12.)


The Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding in forma pauperis, and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program." See 28 U.S.C. §§ 1915(e)(2)-(h) and 1915A. Under these provisions, the Court must sua sponte dismiss any prisoner civil rights action and all other in forma pauperis complaints, or any portions thereof, which are frivolous or malicious, fail to state a claim, or seek damages from defendants who are immune. Id.; see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Dismissal for failure to state a claim "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988, as amended Feb. 27, 1990 and May 11, 1990).

Under Federal Rule of Civil Procedure 8, 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). While Rule 8 does not require "detailed factual allegations," a complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. Thus, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the plaintiff pleads enough factual content to allow a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

To state a claim under 42 U.S.C. § 1983, Plaintiff must allege that: (1) the conduct he complains of was committed by a person acting under color of state law; and (2) that the conduct violated a right secured by the Constitution or laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009, as amended Jan. 15, 2009 and Jan. 30, 2009), cert. granted in part, 130 S.Ct. 1501 (2010) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).


A. Plaintiff Fails to State a Due Process Claim in Violation of the Fourteenth Amendment

The Due Process Clause protects prisoners from being deprived of property without due process of law and prisoners have a protected interest in their personal property. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). It is well established, however, that where prison officials, negligently or intentionally, deprive an inmate of his personal property in a random and unauthorized manner, that deprivation does not violate the Fourteenth Amendment, if the State has provided an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 536 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). Moreover, the state post-deprivation remedy may be adequate even though it does not provide relief identical to that available under §1983. Hudson, 468 U.S. at 531. As the Ninth Circuit explained, the State of California provides such a remedy.

Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).

Here, Plaintiff contends that Defendant Debritz confiscated his book and failed to provide him with a "confiscation receipt" while he was being investigated for "overfamiliarity with staff." (Compl. at 8.) Plaintiff also contends that the book has not been returned to him. To the extent Plaintiff's property was illegally seized, Plaintiff's recourse is, however, through the State mechanism, and the State mechanism alone, not via a federal Section 1983 action.

B. Plaintiff Fails to State a Freedom of Speech Claim in Violation of the First Amendment

Plaintiff next advances a claim for violation of his First Amendment right. The claim is untenable. Of course, prisoners "do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545 (1979). "Inmates clearly retain protections afforded by the First Amendment[.]" O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted). However, "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id. (internal quotation marks, citation and brackets omitted). Thus, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Turner sets forth four factors to be balanced in determining whether a prison regulation is reasonably related to legitimate penological interests:

(1) Whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;

(2) Whether there are alternative means of exercising the right that remain open to prison inmates;

(3) Whether accommodation of the asserted constitutional right will impact guards and other inmates, and on the allocation of prison resources generally; and

(4) Whether there is an absence of ready alternatives versus the existence of obvious, easy alternatives.

Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (internal quotation marks, alterations and citation omitted); accord Turner, 482 U.S. at 89-90.

Plaintiff fails to allege facts in claim two demonstrating that the confiscation of his book was unjustified. To the contrary, Plaintiff alleges the prison staff were undertaking an investigation for "overfamiliarity with staff." (Compl. at 8.) On its surface alone, this allegation appears to reflect a legitimate penological interest that renders Plaintiff's claim facially unplausible. Iqbal, 129 S.Ct. at 1949; see also Bretches v. Kirkland, 335 Fed.Appx. 675, 677 (9th Cir. 2009) ("decision barring [prisoner plaintiff] from publishing his book [must] further an important or substantial interest unrelated to the suppression of [plaintiff's] expression").

To the extent Plaintiff wishes to pursue this claim, Plaintiff must set forth all relevant facts -- not labels or conclusions -- that describe why Defendants' actions were unjustified, including a description of the content of his book. See also Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (finding non-profit newsletter addressing prison-related issues is "protected speech, not commercial speech or speech whose content is objectionable on security or other grounds[]").

C. Plaintiff Fails to State a Retaliation Claim in Violation of the First Amendment

While Plaintiff did not articulate a First Amendment retaliation claim, he factually raised the specter of such a claim, which the Court believes would be prudent to address now because such a claim may not be colorable. Plaintiff alleged that he was placed in administrative segregation after the confiscation of his book and that Defendant Cox threatened that "he would see to it" that Plaintiff would "regret it" if he did not help Defendant Cox with the investigation. (Compl. at 8.)

"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. 2004, as amended Apr. 25, 2005) (footnote omitted).

Thus, the injury asserted in a prison retaliation case is the retaliatory conduct's chilling effect on the plaintiff's First Amendment rights and the injury must be legally unwarranted, that is, there must be the lack of a legitimate correctional goal. See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997), cert. denied, 524 U.S. 936 (1998) (the injury asserted in a retaliation claim is the chilling effect on the prisoner's First Amendment rights); see also Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000, as amended May 22, 2000) (to state an actionable retaliation claim, plaintiff must allege that his First Amendment rights have been chilled or infringed).

Here, it does not appear that Plaintiff can sufficiently allege an injury where his First Amendment rights were chilled, aside from perhaps a de minimis inconvenience or, at best, a speculative allegation to that effect. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam) (finding that a mere threat of constitutional harm is insufficient to state a 1983 claim). Also, as previously stated, Plaintiff not only fails to show the absence of a legitimate correctional goal, but affirmatively provides one on behalf of Defendants, namely, the investigation of "overfamiliarity with staff." Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc), cert. denied, 529 U.S. 1018 (2000) ("[P]rotecting the safety of guards in general is a legitimate interest, and that reducing sexual harassment in particular likewise is legitimate."). It thus appears, albeit without prejudging any matter, that Plaintiff would be unable to state a cognizable First Amendment retaliation claim here.


The Court must construe "pro se pleadings ... liberally ..., particularly where civil rights claims are involved." Balistreri, 901 F.2d at 699. But "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Accordingly, pro se litigants must be given leave to amend unless it is absolutely clear that the deficiencies in a complaint cannot be cured. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). As the Court is unable to determine whether amendment to the Complaint would be futile, leave to amend is granted in an abundance of caution.

By August 2, 2010, Plaintiff may submit a First Amended Complaint to cure the deficiencies discussed above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing the First Amended Complaint. If Plaintiff fails to use the court-approved form, the Court may strike the First Amended Complaint and dismiss this action without further notice.

If Plaintiff chooses to file a First Amended Complaint, it must comply with Federal Rule of Civil Procedure 8, and contain short, plain statements explaining: (1) the constitutional right Plaintiff believes was violated; (2) the name of the defendant who violated that right; (3) exactly what that defendant did or failed to do; (4) how the action or inaction of that defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that defendant's conduct. See 42 U.S.C. § 1983; Fed. R. Civ. P. 8; see also Humphries, 554 F.3d at 1184; Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). If Plaintiff fails to affirmatively link the conduct of the defendant with the specific injury suffered by Plaintiff, the allegation against that defendant will be dismissed for failure to state a claim. Conclusory allegations that a defendant has violated a constitutional right are not acceptable and will be dismissed.

Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint," and it must be retyped or rewritten in its entirety on the court-approved form. The First Amended Complaint may not incorporate any part of the original Complaint by reference.

Any amended complaint supercedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992). After amendment, the Court will treat the original Complaint as nonexistent. Id. Any claim that was raised in the original Complaint is waived if it is not raised again in the First Amended Complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).


1. Plaintiff is given leave to amend and is GRANTED up to and including August 2, 2010, to file a First Amended Complaint curing the deficiencies discussed above. Plaintiff is NOTIFIED that the First Amended Complaint may not add new claims or new defendants that were not involved in the conduct, transactions, or occurrences set forth in the original Complaint. Fed. R. Civ. P. 15(c). The First Amended Complaint shall be retyped or rewritten so that it is complete in itself without reference to the original Complaint, and shall be submitted on the court-approved form. After amendment, the Court will treat the original Complaint as nonexistent.

2. If Plaintiff fails to file a First Amended Complaint by August 2, 2010 and/or such First Amended Complaint fails to comply with the requirements set forth in this Memorandum and Order, the Court may recommend that this action, or portions thereof, be dismissed with prejudice.

3. The Clerk of Court is DIRECTED to send Plaintiff a prisoner civil rights complaint form so that he may amend the Complaint.



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