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Blaine v. Ducan

August 5, 2010

VANCE BLAINE, PLAINTIFF,
v.
DUCAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's amended complaint (Doc. 13).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a ". . . short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

I. PLAINTIFF'S ALLEGATIONS

This action proceeds on plaintiff's amended complaint, filed as of right on April 9, 2010. Plaintiff names the following as defendants: Ducan, Stevens, White, Johnson, Viera, Roszco, Lassister, Archard, Morrison, and Watson.*fn1 Plaintiff offers the following statement of his first claim:

Plaintiff alleges that prison officials misconduct acted oppressively and abusively by excessive cell searches, opening of plaintiff's legal mail, reading the contends, then making a determination that plaintiff's legal mail was contraband, then proceeded to confiscat the legal mail. Then making plaintiff go through the administrative appeal system before returning legal mail which took an exceptionable long period of time which denied plaintiff a meanful access to the courts. [sic].

Plaintiff then sets forth the following factual allegations in support of this claim:

1. On June 19, 2009, defendant White performed a cell search. During the course of this search, White allegedly opened and read various "individual envelops [sic]" which plaintiff claims are legal mail. According to plaintiff, White determined that "plaintiff's legal mail was contraband. . ." and then confiscated it.

2. Plaintiff then informed White that the item of mail had been received just the day prior and related to a pending California Supreme Court post-conviction action. Plaintiff claims that defendant White refused to answer him when asked why his legal mail was being confiscated.

3. White then took plaintiff to the prison mail room where defendant Stevens again "open plaintiff's legal mail and commence to reading all of the contends to review the legal mail officially and to make a determination to see if plaintiff's legal mail is contraband [sic]." Stevens also determined that the mail contained contraband "and further stated that if he [Stevens] knew about it plaintiff would not have received it at all. . . ." Plaintiff was informed that correctional staff had the right to confiscate any contraband materials.

4. Plaintiff was then taken to see defendant Ducan who also opened and "slowly read" plaintiff's legal mail. Ducan agreed with White and Stevens that the mail was contraband. Ducan instructed White to "issue plaintiff a search receipt with the items confiscated."

5. On June 22, 2009, plaintiff spoke with defendant Viera to "convey my concerns about my legal mail and explain that I was in the courts with an post-conviction writ of habeas corpus and that the information in the legal mail is going to be used for evidence, which is a criminal identification chronological history report [rap sheet] . . . ."

6. According to plaintiff, Viera then asked officer Morrison for the combination to the locker where the confiscated mail had been placed. Viera then read the mail himself and then gave Morrison instructions "to take plaintiff to correction officer Watson in R and R to have plaintiff fingerprinted and to mail his legal materials to the Federal Bureau of Investigation (FBI) Department of Justice (DOJ)."

7. Plaintiff was taken to "R and R" the next day by Morrison to see defendant Watson "who took custody of plaintiff's legal mail and Watson then said that he must read plaintiff's legal mail to determine if he could legally fingerprint plaintiff and then mail those prints to FBI-DOJ." About 45 minutes later, plaintiff ...


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