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Rosene Davenport v. Garcia

United States District Court, C.D. California

November 30, 2014

GUILLERMO GARCIA, Warden, Defendant.


JESUS G. BERNAL, District Judge.



On May 21, 2013, Plaintiff Rosene Davenport ("Plaintiff"), a pro se litigant who was previously incarcerated at the California Institution for Women ("CIW"), filed a First Amended Complaint ("FAC"), pursuant to 42 U.S.C. ยง 1983 (Docket Entry No. 15). The FAC seeks declaratory and injunctive relief, and brings suit against the following CIW officials in their official capacities: (1) K. Hughes, Acting Warden; (2) Robert Kettle, Associate Warden; (3) J. Ellis, Mailroom Supervisor; (4) D. Borders, Chief Deputy Warden; (5) D. Glucksman, Correctional Captain; and (6) Doe Defendants One through Five.[1] (See FAC 3-6, 10-11, 15-16.) On September 5, 2013, Defendants filed a Motion to Dismiss the FAC, asserting ( inter alia ) that Plaintiff failed to state a claim upon which relief could be granted (Docket Entry No. 30). On June 9, 2014, Defendants filed a Motion for Summary Judgment, averring that Plaintiff had failed to exhaust administrative remedies prior to filing suit (Docket Entry No. 39). On August 12, 2014, the Magistrate Judge assigned to this case issued a Report and Recommendation that addressed those Motions (Docket Entry Nos. 41, 42).

On August 27, 2014, Plaintiff filed a "Notice of Change of Address[, ]" which informed the Court that she had been moved to the Female Community Reentry Facility in McFarland, California ("FCRF") (Docket Entry No. 44). On September 2, 2014, Defendants filed a Rule 12(b)(1) Motion, asserting that Plaintiff's transfer caused the FAC's claims to become moot (Docket Entry No. 45). On September 11, 2014, the Court ordered Plaintiff to file an Opposition to the Rule 12(b)(1) Motion no later than October 14, 2014 (Docket Entry No. 47). To date, Plaintiff has not filed such an Opposition.[2] Having carefully considered the matter, the Court GRANTS Defendants' Rule 12(b)(1) Motion, and DISMISSES this action without prejudice for lack of subject-matter jurisdiction.



From January 1, 2012, to the date on which Plaintiff filed the FAC, CIW officials violated Plaintiff's First and Fourteenth Amendment rights by improperly "deliver[ing] and processing... incoming and outgoing mail." (See FAC 3, 9, 16.) In particular, "Plaintiff [had]... receiv[ed] her mail at least two to four weeks past the postmark date for years at [CIW]." (See id. at 11.) For instance, "[i]n February of 2013, Plaintiff received letters postmarked from December 2012." (See id.) Additionally, "[i]n March 2013, Plaintiff received legal mail delivered to her as regular' mail that had been opened and read prior to delivery to [her]." (See id.) Moreover, at some unspecified point "[i]n the past, Plaintiff... missed two court dates involving child custody matters due to the late delivery of legal mail." (See id.)

The delays in delivery and the improper opening of "legal" mail were caused by CIW's policy of "refusing and failing to fill the mailroom positions adequately" ("inadequate staffing policy"). (See id. at 13-14.) The policy was implemented to "reserve' these positions in the event [that] staff are demoted, temporarily assigned to medical light duty, ' or have arrived from a transfer.'" (See id. at 14.) "In addition, ... in the event the parole agent workforce in the community is downsized, these agents [would] still [be able to work] in CIW's prison mailroom." (See id.) The inadequate staffing policy violates Plaintiff's "First Amendment right of speech and communication and Fourteenth [A]mendment right of due process of law." (See id.)

Furthermore, "CIW has [an] unofficial/unwritten policy' that requires prisoners to use a homemade' (by CIW prison) proof of service' form as an external wrapper to the prisoner's outgoing legal and/or confidential mail" ("proof of service policy"). (See id. at 11.) "[P]laintiff and other prisoners have been told by [mailroom] staff that their confidential mail will not be logged in the staff log (contemporaneous to the actual mailing) because the [proof of service policy]... is intended to replace the contemporaneous staff logging procedure." (See id. at 12 (emphasis added).) If prisoners do not utilize the proof of service procedure, "they do so at the risk of custody staff refusing to process their outgoing legal/confidential mail confidentially.'" (See id.) The proof of service policy violates Plaintiff's "[F]irst [A]mendment right to access the courts" and her "[F]irst [A]mendment right to confidential communications with authorized persons."[4] (See id. at 14-15.)

To remedy these constitutional violations, Plaintiff seeks declaratory and injunctive relief from the named Defendants (including the Doe Defendants) in their official capacities. (See id. at 10-11, 15-16.) Plaintiff also requests "such other relief as may be appropriate and to which [P]laintiff appears to be entitled."[5] (See id. at 16.)



Federal Rule of Civil Procedure 12(b)(1) permits parties to move to dismiss actions for lack of subject-matter jurisdiction.[6] See Fed.R.Civ.P. 12(b)(1). There are two forms Rule 12(b)(1) motions: (1) facial motions, and (2) factual motions. See Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039-40 n.2 (9th Cir. 2003). In a facial attack, the propriety of jurisdiction is determined based on solely the allegations of the complaint. See id. On the other hand, in a factual challenge, once the moving party "present[s] affidavits and other evidence[, ]... the ...

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