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Anthony Richardo Turner v. Connie Gibson

February 9, 2012

ANTHONY RICHARDO TURNER,
PLAINTIFF,
v.
CONNIE GIBSON, ET AL., DEFENDANTS.



ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Doc. 1 / THIRTY-DAY DEADLINE

Screening Order

I. Screening Requirement and Standard

On August 22, 2011, Plaintiff Anthony Richardo Turner, a state prisoner proceeding pro se and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983. 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).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Allegations in Plaintiff's Complaint

In Plaintiff's complaint, he names thirty (30) Defendants employed at California State Prison, Corcoran. Pl. Compl. at 2-3 & 6-7, Doc. 1. Plaintiff names warden Connie Gibson, Arranda, K. Lomelle, D. Garcia, C. Brown, G. Rangel, J. Martinez, P. Munoz, M. L. Gonzales, R. C. Garcia, J. Gonzales, J. Clark, B. Epstien, Bugni, T. Variz, E. Felix, A. M. Smith, R. Perez, R. Bolen, Maxfield,

O. Rodriguez, L. Flores, S. Pina, Raul Lopez, Latrell, M. Cahoun, Edgar Clark, Greg Wall, Yu, and Enriquez. Id. Plaintiff also alleges that this is a "class action" for a declaratory judgment and injunction for violations of constitutional rights who Plaintiff deems "Plaintiff Class." Id. at 3-4. The "class members" include Plaintiff and twenty-four (24) convicted plaintiff class members. Id.

Plaintiff alleges Defendants deny Plaintiff Class meaningful and adequate contact and communications with the general public. Id. at 12. Defendants open, obstruct, tamper, and delay their legal attorney or court confidential mail. Id. Defendants limit their prison visits, prohibit physical contact during visits, including conjugal visits. Id. Defendants deny un-sentenced / pretrial, and sentenced / convicted prisoners access to the law library, legal materials, and legal supplies. Id. at 13. Prisoners are denied access to jailhouse lawyers. Id. at 14. Defendants deny Plaintiff Class adequate opportunity to exercise. Id. Prisoners are denied access to fresh air and sunshine. Id. The prison is overcrowded with bad air and ventilation. Id. Defendants deny Plaintiff Class the opportunity to shower on a daily basis. Id. at 16. Defendants deny Plaintiff Class an adequate diet, which results in food contamination and food poison illnesses. Id. at 16-17. Medical care is wholly inadequate. Id. at 17. Defendants arbitrarily seize medications or drugs from prisoners. Id. at 18. Defendants are deliberately indifferent to the prisoners' medical needs. Id. Prisoners are not give routine and preventative dental care. Id. at 19. There is insufficient treatment for drug addicts, and Defendants do not provide methadone for those lawfully entitled to it. Id. at 19-20. Defendants impose punishment on Plaintiff Class without due process, notice, hearing, or opportunity to speak for themselves. Id. at 20. There are no standardized punishments and include withdrawal of privileges, solitary confinement, isolated cells, loss of television, loss of property, loss of sack lunches, food, denial of exercise or religious services. Id. at 20-21. Prisoners are being subjected to physical abuse or violence. Id. at 21. They are stripped naked in front of female personnel to their boxers. Id. Prisoners that are harshly punished are not fed, given spoiled lunches, or wholly inadequate sack lunches. Id. Prisoners that are targeted for specific race class punishment are forcibly placed in administrative segregation, physically brutalized by Defendants, are not provided a mattress, linen, utilities, or drinking water for long hours. Id. at 21-22. Sane prisoners are housed with mentally ill inmates, and Defendants failed to make corrective measures to racially balance the environment. Id. at 22. Defendants house former gang members with the mentally ill in order to stage violence for retaliation. Id. Prisoners are kept in animal holding cages, handcuffed for long hours at a time, and subjected to pepper spray in their mouth and eyes. Id. at 22-23. Prisoners are not allowed to practice their religion in administrative segregation. Id. at 23. Catholic, Buddhists, Muslims, and Jewish prisoners are not provided spiritual counseling or services. Id.

For relief, Plaintiff seeks a declaratory judgment, an injunction, and compensatory and punitive damages. Id. at 3, 24, 28. In addition, Plaintiff seeks to enjoin Defendants from retaliating, adverse transferring, harassing, threatening, assaulting, abusing, torturing, entrapping, stalking, slandering, food poisoning, mail tampering, mis-classifying, staging into violence, provoking, instigating, inducing, falsifying reports for administrative segregation placement, confiscating legal property, destroying legal property, slandering, discriminating against, obstructing regular mail, racial profiling, or any other illegal conduct or conspiracy. Id. at 25.

III. Legal Standard and Analysis for Filing a Prisoner Class Action

Although Plaintiff purports to bring this as a class action, he is not an attorney and he is proceeding without counsel. A pro se litigant simply cannot "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4); Fymbo v. State Farm Fire & Casualty Co., 213 F.3d 1320, 1321 (10th Cir. 2000). While a non-attorney proceeding pro se may bring his own claims to court, he may not represent others. E.g., Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008); Fymbo, 213 F.3d at 1321; Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Therefore, this action shall proceed solely with Plaintiff.

IV. Legal Standard and Analysis for Plaintiff's Claims

1. First Amendment Right to Receive Mail

Plaintiff alleges Defendants open, obstruct, tamper, and delay their legal attorney or court confidential mail. Pl. Compl. at 12.

Prisoners have "a First Amendment right to send and receive mail." Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). However, the right is not absolute and may be infringed upon by prison officials under certain circumstances. Witherow, 52 F.3d at 265 ; Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam) (outgoing mail); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (incoming mail). An isolated incident of mail interference or tampering will not support a claim under section 1983. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

Plaintiff fails to state a claim against any Defendants. Plaintiff has not alleged sufficient facts which indicate that Defendants violated his First Amendment right to receive mail.

2. First Amendment Right to Religion

Plaintiff alleges that prisoners are not allowed to practice their religion in administrative segregation. Pl. Compl. at 23. Catholic, Buddhists, Muslims, and Jewish prisoners are not provided spiritual counseling or services. Id.

Inmates retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). The protection of the Free Exercise Clause is triggered when prison officials substantially burden the practice of an inmate's religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 884-85. However, because lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, Shakur, 514 F.3d at 884 (citing O'Lone, 482 U.S. at 348), any impingement on an inmate's constitutional rights is valid if it is reasonably related to a legitimate penological interest, id. (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). At the pleading stage, the Court cannot determine whether an alleged infringement into a protected right is reasonably related to a penological purpose, Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008), and to state a claim, Plaintiff need only demonstrate an infringement into a sincerely held belief which is religious in nature, Shakur, 514 F.3d at 885; Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).

Plaintiff fails to state a claim against any Defendants. Plaintiff has not alleged sufficient facts which indicate that Defendants violated his First Amendment right to religion.

3. First Amendment Right to Access to Courts

Defendants deny un-sentenced / pretrial, and sentenced / convicted prisoners access to the law library, legal materials, and legal supplies. Pl. Compl. at 13.

Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of access to the courts is merely the right to bring to court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a claim, a prisoner must have suffered an actual injury by being shut out of court.

Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009).

Plaintiff fails to state a claim against any Defendants. Plaintiff has not alleged sufficient facts which indicate that Defendants violated his ...


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