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Kindred v. Allenby

United States District Court, E.D. California

July 3, 2019

RICHARD SCOTT KINDRED, Plaintiff,
v.
CLIFF ALLENBY, et al., Defendants.

         FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF'S FOURTH AMENDMENT SEARCH AND SEIZURE CLAIMS AGAINST DEFENDANTS BRANDON PRICE, J. CORONA, JORGE LOPEZ; AND JOHN/JANE DOES 1-5; FIRST AMENDMENT FREE EXERCISE CLAIM AGAINST DEFENDANTS J. CORONA AND JORGE LOPEZ; AND FIRST AMENDMENT ACCESS TO COURTS CLAIM AGAINST JOHN/JANE DOES 6-10; AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED WITH PREJUDICE (ECF NO. 16) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS

         Plaintiff, Richard Scott Kindred, a civil detainee at the Coalinga State Hospital (“CSH”), is proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court for screening is Plaintiff's Third Amended Complaint (“TAC”). (ECF No. 16.) Plaintiff alleges that his constitutional rights were violated by Defendants when they searched and seized his personal and religious property, and when they failed to provide him access to his legal documents.

         For the reasons discussed below, the Court finds that the TAC states cognizable claims against Defendants Brandon Price, J. Corona, Jorge Lopez, and John/Jane Does 1-5 for violation of Plaintiff's Fourth Amendment right against unreasonable search and seizure; against Defendants J. Corona and Jorge Lopez for violation of Plaintiff's First Amendment right to freely exercise his religion; and against John/Jane Does 6-10 for violation of Plaintiff's First Amendment right to access the courts. The TAC does not state any other cognizable claim against any other defendant.

         Plaintiff may file objections to these findings and recommendations within 21 days from the date of service of this order.

         I. BACKGROUND

         Plaintiff filed the Complaint commencing this action on April 25, 2018. (ECF No. 1.) On September 7, 2018, he filed a motion to file an addendum to the Complaint. (ECF No. 7.) Because the Complaint was not signed by Plaintiff in violation of Federal Rule of Civil Procedure 11(a), the Court struck the Complaint and allowed Plaintiff to file an amended complaint. (ECF No. 8.) The Court also granted Plaintiff's motion to file an addendum to the Complaint, instructing Plaintiff that the information he sought to include through the addendum must be included in the amended complaint. (Id.)

         On October 3, 2018, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No. 9.) The Court screened the FAC and found that it failed to state any cognizable claim. The Court gave Plaintiff the opportunity to either (1) filed a second amended complaint, or (2) notify the Court that Plaintiff wished to stand on the FAC. (ECF No. 10.) On December 3, 2018, Plaintiff filed his Second Amended Complaint (“SAC”). The Court screened the SAC and found that it stated a cognizable claim against Defendant J. Corona for violation of Plaintiff's First Amendment right to freely exercise his religion, but that the SAC did not state any other cognizable claim against any other defendant. (ECF No. 15.) The Court gave Plaintiff the opportunity to either (1) notify the Court that he is willing to proceed only on the First Amendment claim against Defendant J. Corona, (2) file a third amended complaint, or (3) notify the Court that he wishes to stand on the SAC subject to the Court issuing findings and recommendations consistent with the screening order. (Id.) Plaintiff chose to file a Third Amended Complaint (ECF No. 16), which is before the Court for screening.

         II. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by civil detainees 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 detainee 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). As Plaintiff is proceeding in forma pauperis (ECF No. 4), the Court may also screen the complaint under 28 U.S.C. § 1915. “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 is required to 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, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         III. ALLEGATIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT

         The TAC brings claims for seizure of personal property in violation of the Fourth Amendment; seizure of religious items in violation of the First Amendment; denial of due process in violation of the Fourteenth Amendment;[1] and denial of the right of access to courts in violation of the First Amendment. Plaintiff names as defendants Brandon Price, Executive Director of California Department of State Hospitals-Coalinga (“DSH-C”); J. Corona, Sergeant of the Department of Police Services, DSH-C; Jorge Lopez, psych tech at DSH-C; and John/Jane Does 1-10.[2] (ECF No. 16 at 1-3.)

         A. Claim I: Violation of Fourth and Fourteenth Amendment Rights- January/February 2018 Seizure of Property

         Plaintiff alleges that his Fourth Amendment right to be free from unreasonable search and seizure, and his rights under the Fourteenth Amendment were violated when his personal items were taken during a search of his living area in January and/or February 2018, and subsequently destroyed without providing Plaintiff with compensation. (ECF No. 16 at 4, 10.)

         On December 22, 2017, Defendant Brandon Price submitted an emergency regulation requesting that the Office of Administrative Law grant Price authority to deem as contraband certain electronic devices. (ECF No. 16 at 4.) Price's request was granted. (Id.) As a direct result of the emergency regulation, Price ordered an Institutional Lockdown between January 12, 2018, and February 20, 2018, and began a unit to unit search “allowing his underlings to take whatever they wanted whether it met the criteria or not and then later refused to return said items and offered no compensation for the property taken.” (ECF No. 16 at 5.) Plaintiff had the following property taken from his living quarters: electric razor, battery-operated alarm clock, goose down pillows, four port hub, two MP-3 players; and a Briteview media player. (Id. at 5.) This property has not been returned and has now been destroyed without any compensation to Plaintiff. (Id. at 10.)

         B. Claim II: Violation of First, Fourth, and Fourteenth Amendment Rights-May 2018 Seizure of Religious and Non-Religious Property

         Plaintiff alleges that his Fourth Amendment right to be free from unreasonable search and seizure, his First Amendment right to free exercise of religion, and his Fourteenth Amendment due process rights were violated when his religious and non-religious personal items were taken during a search of his living area. Plaintiff alleges that on May 29, 2018, at approximately 7:00 in the morning,

Plaintiff was awoken by Def. Sgt. J. Corona who order him to get out of bed that he had to leave. Plaintiff responded by asking if they were doing a Unit Search. Def. Sgt. J. Corona replied that they were doing a general search of plaintiffs' area, [and] he would be searched as well. Plaintiff replied that there was no such thing as a general search, [to] which Def. Sgt. J. Corona [responded] by stating “If you want the privilege of standing by you need to shut your mouth and comply with my order, now get up and go outside.” Plaintiff complied, but informed Def. Sgt. J. Corona that she was performing an illegal search[, ] that he was Native American and his spiritual and sacred items needed to be secured before they began a search of his living area and property. Def. Sgt. J. Corona then stated, “Don't tell me my job, I know what the Administrative Directives state.” Def. Sgt. J. Corona the[n] directed on[e] of her officers to go and get one of the Unit Staff, [and] the officer returned with Defendant Jorge Lopez. Def. Sgt. J. Corona then requested of Def. Jorge Lopez whether or not there was anything to prove that plaintiff was Native American. Def. J. Lopez just shrugged and didn't state anything. Plaintiff intervened at this time and stated, “My Native American Stop Sign is on the door with a list of my sacred and spiritual items that are in my living area.” Def. Sgt. J. Corona again stated, “I already told you to shut your mouth, one more interference from you and you will be escorted from the area.” One of the female officers started searching around plaintiff's altar and opened the bottom drawer where plaintiff keeps his sacred Red Tail Hawk Fan. She began to grab it and plaintiff started to warn her that she was not to handle it, that he would get it out and show it to her, but before he could finish his statement Def. Sgt. J. Corona began yelling and stated, “That's it, I told you not to interfer[e].” She looked at Def. J. Lopez who directed Kindred to leave stating, “I'll come back and watch them search your area.”

(ECF No. 16 at 6-7 (citations omitted).)

         When Plaintiff was allowed to return to his living area, “he discovered that numerous items were missing both religious and non-religious that are not on any contraband list.” (Id. at 7.) The missing items include the following: a ceremonial ribbon shirt, ceremonial deer skin trousers, a spiritual blanket, a large black duffel bag, a small leather/suede duffel bag, a 24” Samsung television, and rechargeable batteries. (Id.)

         C. Claim III: Violation of First Amendment Rights-Loss of Gray Bin with Legal Paperwork

         Plaintiff alleges that his First Amendment access to the courts and Fourteenth Amendment due process rights were violated because undesignated defendants were unable to locate/lost a gray bin that contained Plaintiff's legal paperwork, causing Plaintiff to miss a deadline for filing a petition with the U.S. Supreme Court.

         “Plaintiff filed a writ of preliminary injunction on March 21st 2018 and received their reply on June 20th 2018.”[3] (ECF No. 16 at 8.) Because Coalinga staff had continuously harassed Plaintiff about the amount of paperwork he keeps in his living area, Plaintiff agreed to place his legal documents in a secured gray bin that was to be kept on the unit for easy access. (ECF No. 16 at 8.)

In addition he received additional re-hearing response on July 12th, 2018, which he also placed inside the [a]forementioned gray bin. However, when plaintiff prepared the appeal to the Supreme Court of the United States in September he discovered that the Gray Bin was missing from Unit Property Room. The Hospital Unit 18 Staff and The Department of Police Services Officers who were the only ones with the access key, had no idea where the gray bin was and plaintiff was forced to contact the United States Court of Appeals for copies of the documents. However, by the time that these were sent to plaintiff he was not able to file it before the 19th of October 2018, it was too late and the Supreme Court of the United States Clerk stated that plaintiff had failed to meet the deadline for filing.
Plaintiff attempted to call and speak with Jacob Levitan or Scott S. Harris the Clerks of the Court and explain the situation, but they stated there was nothing that could be done.

(ECF No. 16 at 8-9.)

         IV. SECTION 1983

         The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

         To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.'” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict' constitutional harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard ‘foreseeability' formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

         Additionally, a plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the ...


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