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Shannon Lewis Avery, Sr v. Suzan L. Hubbard

March 2, 2011

SHANNON LEWIS AVERY, SR.,
PLAINTIFF,
v.
SUZAN L. HUBBARD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L.Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE ANY CLAIMS UNDER 1983 OBJECTIONS, IF ANY, DUE IN 30 DAYS(Doc. 34)

I. Screening Order

Plaintiff Shannon Lewis Avery, Sr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint onJanuary 7, 2009, in the Northern District of California. (Doc. 1.) Plaintiff's case was transferred to the Eastern District of California on February 23, 2009. (Doc. 6.) On June 22, 2009, the Court issued an order dismissing Plaintiff's complaint for failure to state a claim upon which relief may be granted, and granting Plaintiff leave to file an amended complaint within 30 days. (Doc. 16.) On September 1, 2009, the Court issued a Findings and Recommendations recommending dismissal of the action for failure to state a claim and failure to file an amended complaint. (Doc. 17.) On September 25, 2009, Plaintiff filed objections to the Findings and Recommendations. (Doc. 18.) On October 21, 2009, the Court vacated the Findings and Recommendations and ordered Plaintiff to file an amended within 30 days. (Doc. 20.)

On June 1, 2010, the Court granted Plaintiff a fourth and final extension of time to file an amended complaint. (Doc. 33.) On June 25, 2010, Plaintiff filed an amended complaint. (Doc. 34.) Plaintiff's amended complaint is presently before the Court for screening.

A. Screening Requirement

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 § 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)).

B. Summary of Plaintiff's Amended Complaint

Plaintiff is currently a state prisoner at Avenal State Prison ("ASP") in Avenal, California, where the acts he complains of occurred. With the exception of 12 pages, Plaintiff's 96-page amended complaint is virtually identical to his original complaint. Plaintiff again names the following defendants: Suzan L. Hubbard, Director of the California Department of Corrections and Rehabilitation ("CDCR"); James D. Hartley, Warden of ASP; M. Cruz, mailroom sergeant at ASP; Lieutenant John Doe, supervisor of mailroom sergeant at ASP; J. Montana-Hiller, mailroom sergeant at ASP; Schreiber, Warden's designee staff in the mailroom; and R. Gonzales, correctional officer at ASP.

Plaintiff re-alleges the following: On December 23, 2007, Plaintiff mailed ten legal/confidential letters. On December 24, 2007, Plaintiff received five of those letters back, unsent. Defendant R. Gonzales was the officer who processed Plaintiff's mail. The letters were returned for non-compliance with title 15 section 3141 of the California Code of Regulations. (Doc. 34, pp. 4-5, ¶ 11-13.)

The letters to these five organizations were returned: Prison Book Project; Southern Poverty Law Center; Human Rights Watch Prison Project; Books Through Bars; and Fortune News. (Doc. 34, pp. 13-14, ¶¶ 49-53.) Plaintiff re-alleges that prison officials have interfered with his constitutional rights to communicate with legal counsel and the media. Plaintiff also re-alleges other instances in which defendants interfered with Plaintiff receiving and sending mail.

The amended complaint adds the following allegations: On September 8, 2008, Plaintiff wrote a letter to the publisher of The Fresno Bee. On November 9, 2008, Plaintiff wrote a letter to the National Association for the Advancement of Colored People seeking attorney help. These legal/confidential letters were never mailed. (Doc. 34, p. 66, ¶¶ 236, 239.) Plaintiff also asserts that his inmate appeals (grievances) are not being processed and/or logged. (Doc. 34, pp. 63-64,

¶¶ 223-29.)

Plaintiff claims interference with his right to access the courts, interference with his personal mail and retaliation. Plaintiff seeks money damages, declaratory relief, and injunctive relief.

C. Plaintiff's Claims

As with his original complaint, Plaintiff alleges several violations of the First Amendment.

1. Access to the Courts

Plaintiff again asserts that his access to the courts was denied because his mail to legal organizations was denied and his access to ...


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