Brown v. Winn-Reed

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 10)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Eugene Carlton Brown (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. On May 8, 2019, the Court screened Plaintiff's complaint and granted him leave to amend. (ECF No. 9.) Plaintiff's first amended complaint, filed on June 18, 2019, is currently before the Court for screening. (Doc. No. 10.)

         I. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

         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, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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).

         To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

         II. Plaintiff's Allegations

         Plaintiff is currently housed at the Sierra Conservation Center in Jamestown, California, where the events in the complaint are alleged to have occurred. Plaintiff names the following defendants in their individual and official capacities: (1) S. Winn-Reed, Mailroom Manager/Supervisor; (2) J. Harris, Captain; (3) P. Eaton, Associate Warden; (4) N. Fransham, Chief OPS DAI, Office of Policy Standardization/Division of Adult Institutions; (5) P. Quinn, Chief Deputy Warden; (6) H. B. Anglea, Warden; (7) M. Voong, Office of Appeals Chief; (8) G. Bickham, Captain, Appeals Examiner; and (9) Ralph Diaz, Secretary of the California Department of Corrections & Rehabilitation (“CDCR”).

         Plaintiff alleges that on June 6, 2018, the mailroom staff at Sierra Conservation Center withheld from him and disallowed the May and June 2018 issues of Prison Legal News and Criminal Legal News. These publications were disallowed for allegedly violating the obscenity prohibition in Title 15 of the California Code of Regulations, section 3135(d).

         Plaintiff contends that his due process rights were violated when Defendant S. Winn-Reed held Plaintiff's publications for more than three weeks before obtaining a CDCR notice of disapproval form from Defendant J. Harris. Upon receipt of the notice, Plaintiff filed a CDCR 602 appeal on June 29, 2018.

         Defendant S. Winn-Reed participated in the disallowance of Plaintiff's publications. On July 16, 2018, Defendant S. Winn-Reed allegedly requested approval from Defendant N. Fransham to place the temporarily withheld publications on the centralized disallowed publications list. Defendant Fransham placed these publications on the disapproved list.

         On July 17, 2018, Defendant S. Winn-reed then heard the first level review of Plaintiff's 602 appeal. Plaintiff contends that Defendant Winn-Reed was not permitted to hear the appeal according to prison regulations. During the hearing, Defendant Winn-Reed stated, “I disallow these publications from coming in because I do not want pictures falling into the hands of sex offenders.” (ECF No. 10 at 6.) Plaintiff claims that he was denied the minimal procedural due process protected by the Fourteenth Amendment, which he asserts requires a two-level review and referral to a prison official other than the person who originally disapproved the publication. Plaintiff further alleges that the publication did not contain photos or any obscene language that would be a threat to security.

         Plaintiff later learned that his April 2018 Criminal Legal News also was being withheld. Defendant Harris failed to issue Plaintiff a CDCR Notice of Disapproval form and the publication was not on the centralized list of disapproved publications.

         Plaintiff further alleges that Defendants Eaton, Quinn, Anglea and Diaz failed to put in place administrative policy and safeguards to protect Plaintiff's rights through training of staff in the mailroom. Plaintiff asserts that they prescribe and enforce policy that caused a deprivation of Plaintiff's First Amendment rights. In particular, Plaintiff faults CDCR regulation section ...