The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' summary judgment motion filed May 31, 2011. After carefully considering the record, the undersigned recommends that this action be dismissed for lack of jurisdiction. For this reason, the undersigned does not reach the merits of defendants' motion.
For purposes of considering jurisdiction, the undersigned finds that the following facts are undisputed.
At all relevant times, plaintiff was a state prisoner incarcerated at High Desert State Prison ("HDSP"). In 2008, defendant Felker was the Warden of HDSP. In 2008, defendant Gower worked as an Associate Warden at HDSP. In 2008, defendant Quezada was a Correctional Officer with the Investigative Services Unit ("ISU") at HDSP. In 2008, defendants Grannis and Phillips worked at the Inmate Appeals Branch investigating and responding to inmate appeals at the Director's level of the administrative process.
On May 6, 2008, defendant Quezada prepared an affidavit in support of an order to seize funds from plaintiff's bank account at Wachovia Securities. This affidavit stated, in relevant part,
On Saturday, April 12, 2008, the Investigative Services Unit (ISU) at High Desert State Prison (HDSP) conducted a consensual search of person and vehicle on Dinah Bayley... As a result of this search, approximately 8.3 grams of suspected Methamphetamines, saturated into homemade greeting cards was found in the possession of Dinah Bayley. A presumptive field test revealed the controlled substance to be positive for Methamphetamines.
Your affiant interviewed Bayley concerning her conspiring to traffic narcotics into HDSP. Bayley was read her Miranda rights per the Miranda Supreme Court Decision and agreed to make a statement. Bayley stated she intended to mail the methamphetamine soaked cards to Inmate Church after obtaining his permission to do so during the present visit.
During a search of Bayley's vehicle, a copy of a bank check from Wachovia Securities, LLC Account # 7823-2696, dated 3/17/08, payable to Robert Church C/O Sanders in the amount of $400.00 was found in the same envelope as the methamphetamine soaked greeting cards.
Intercepted from incoming mail was a letter addressed to Church from Bayley mentioning a check Bayley received for Church for $400. Bayley states that there was no indication who sent the check but notes it is a bank draft. Bayley includes a photocopy of the receipt portion of the bank draft indicating "REF: MICHAEL CHESS" and an issuing bank of Wachovia Securities, LLC in Virginia.
On Sunday, April 13, 2008, ISU intercepted a phone conversation from an inmate identifying himself as "David" to Dinah Bayley at phone number 707-943-1732. During the call David and Bayley discuss money and specifically mention Wachovia Securities and a bank location of Virginia.
During an ongoing investigation of Inmate Chess's mail, a bank statement from Wachovia Securities in the name of Michael A. Chess was intercepted detailing the above mentioned check issued to Robert Church, as well as two additional checks issued on the same date, one for $200.00 and another for $400.00.
Affiant knows these small amounts are consistent with drug purchases/transactions. A search of outgoing mail from Inmate Chess revealed a handwritten note containing what appears to be a request for funds transfer. In the top right corner of the page is a box drawn around information pertaining to "Chess Family Trust" belonging to Michael A. Chess, 8/10/89 along with branch and account numbers. The body of the note contains a salutation to Mr. Hartman and instructions for two separate withdrawals in the amounts of $100.00 and $50.00 respectively. The lower right corner of the page contains the routing information for the money complete with names and addresses of the recipients. The instructions indicate $100.00 is to be sent to Abe Wells, E40098, HDSP, C6-124, P.O. Box 270249, Susanville, CA, 96127. The note is signed, "My signature: Michael Chess."
By speaking with an employee with the Fraud Security Department of Wachovia Securities, it was confirmed that the above account does in fact exist in the name of Carol Smith for the Benefit of Michael A. Chess. A review of Inmate Chess's Central File confirmed that Carol Smith is Inmate Chess' cousin affording her the authority to write checks on this account in the name of Michael A. Chess.
Through a review of HDSP inmate records, Abe Wells is an inmate currently housed at High Desert State Prison, E-40098 Facility C, Building 6, cell # 124.
On May 1, 2008, a search of Facility C, Building 1, cell # 102, assigned to Inmate Chess was conducted. During this search numerous bank statements issued from Wachovia Securities in the name of Michael A. Chess were recovered. The statement of the period January 1-31, 2007 contains handwritten circles around the dates and amounts of some of the checks listed as issued from this account. The checks circled are in $50 and $100 amounts, which is consistent with controlled substance transactions and the attempt to avoid detection using simple multiple payments.
Additional Wachovia Securities bank statements identifying Michael Chess as the beneficiary on the account dating back to the period June 1--June 30, 2006. These statements contain itemizations of check withdrawals from this account this investigator believes represent additional payments for the facilitation of narcotics trafficking. These check withdrawals are itemized by date below: ****
For the statement period May 1--May 31, 2007, the account statement indicates an amount of $1,125.00 withdrawals by Check for the Current Period. However, the page that itemizes the check date, check number and individual check ...