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Harrison v. Niehus

United States District Court, E.D. California

September 9, 2019

MARCUS HARRISON, Plaintiff,
v.
NIEHUS, et al., Defendants.

          ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF No. 12), FOURTEEN (14) DAY DEADLINE

          BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Marcus Harrison is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On April 2, 2018, the Court screened Plaintiff's complaint and granted Plaintiff leave to file a first amended complaint. (ECF No. 9.) On April 2, 2019, the Court screened Plaintiff's first amended complaint and granted Plaintiff leave to file a second amended complaint. (ECF No. 11.)

         Plaintiff's second amended complaint, filed on May 2, 2019, is currently before the Court for screening. (ECF No. 12.)

         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); see also 28 U.S.C. § 1915(e)(2)(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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). 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 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II. Summary of Plaintiff's Allegations

         Plaintiff is currently housed at California Medical Facility. Plaintiff alleges that the events at issue in this action took place at California State Prison, Corcoran (“Corcoran”). Plaintiff names the following defendants, each of whom is employed at Corcoran: (1) Institutional Gang Investigator S. Niehus; (2) Institutional Gang Investigator J. Pierce; (3) Investigative Service Unit R. Broomfield; (4) Chief Deputy Warden M. Sexton; and (5) Associate Warden J. Vanderpoel.

         Plaintiff alleges as follows: On February 3, 2015, Plaintiff arrived at Corcoran's Security Housing Unit (“SHU”) via a transfer from Pelican Bay State Prison's SHU. On March 11, 2015, Corcoran SHU Property Room Officer G. Robles issued Plaintiff his personal legal property. Upon inspection of his personal legal property, Plaintiff informed Officer Robles that several “legal document materials” were missing. Officer Robles then informed Plaintiff that Corcoran's Institutional Gang Investigation Unit (“IGI Unit”) had searched Plaintiff's property and confiscated materials. Plaintiff was issued a property removal receipt dated February 18, 2015 that was signed by Defendant Niehus and which listed all of the items confiscated by Corcoran's IGI Unit.

         On March 15, 2015, Plaintiff sent a CDCR Form 22, dated March 15, 2015, to Corcoran's IGI Unit, addressed to Defendant Niehus, wherein Plaintiff inquired about the confiscation of his political writings, pamphlets, reference notes, newspaper clippings, etc. On March 17, 2015, Defendant Niehus responded to Plaintiff's CDCR 22 form by saying, “On February 18, 2015, Corcoran I.G.I. Unit searched your property located in 4B SHU Property Room. Refer to attached property receipt. On February 18, 2015, a copy of the attached search receipt was forwarded to you via institutional mail. All items confiscated will be documented @ a future date.” (ECF No. 12, at 8-9, 33.)[1]

         Plaintiff asserts that, as indicated by Officer Robles and Defendant Niehus, all of Corcoran's IGI unit staff members were complicit in confiscating Plaintiff's “legal exhibits.” Plaintiff further asserts that the Defendants in this case have caused, created, authorized, condoned, and knowingly approved of Plaintiff's access to the court being obstructed and interfered with and of Plaintiff's First Amendment rights being violated, when they relied on California Code of Regulations, title 15, §§ 3006(a) and (c), 3191(c), and 3378.2 when confiscating Plaintiff's materials and when investigating the confiscation after it was brought to their attention. Specifically, in the May 4, 2015 First Level Response to Plaintiff's administrative appeal, Log No. CSPC-8-15-02088, Defendants Pierce and Broomfield stated that the materials confiscated from Plaintiff were still being held pending an investigation pursuant to California Code of Regulations, title 15, §§ 3006(a) and (c), 3191(c), and 3378.2. (Id. at 10, 38-39.)

         With regards to Defendant Vanderpoel, in the March 26, 2015 First Level Response to Plaintiff's administrative appeal, Log No. CSPC-6-15-01075, Defendant Vanderpoel stated that Corcoran was not responsible for Plaintiff not meeting his legal deadline in the Harrison v. Burris case because Plaintiff only arrived at Corcoran three days prior to the alleged due date and Plaintiff failed to submit any documentation to support his allegation of a legal deadline. (Id. at 10, 41-42.) However, Plaintiff asserts that, on February 3, 2015, he personally handed Corcoran SHU law library Officer Beam documentation of his February 6, 2015 legal deadline. (Id. at 10-11, 27.) Further, with regards to Defendant Sexton, in the June 30, 2015 Second Level Response to Plaintiff's administrative appeal, Log No. CSPC-8-15-02088, Defendant Sexton stated that, after reviewing the February 18, 2015 property receipt, it has been determined that Plaintiff will receive an itemized list of the items removed from Plaintiff's property. (Id. at 11, 40.) Plaintiff alleges that these facts establish that “the aforementioned Defendants” have violated his constitutional right to access the court and his First Amendment right to free speech, expression, and association in their supervisory role. (Id. at 11, 15.)

         Plaintiff alleges that the confiscation of his legal property did not advance any penological interests of the prison because the same property was previously reviewed by CDCR IGI Investigator S. Burris at Pelican Bay State Prison in July 2011 and, subsequently, the legal property was issued to Plaintiff. (Id. at 11, 44-45.)

         Plaintiff had two cases pending: (1) Harrison v. S. Burris, Case No. 13-cv-2506-JST (PR) (N.D. Cal.), which was dismissed on March 31, 2015; and (2) Harrison v. D. Milligan, Ninth Circuit Case No. 14-15022, which, on May 19, 2015, affirmed the district court's entry of summary judgment against Plaintiff. (Id. at 29, 35-36.) Plaintiff asserts that the legal property that was confiscated was in the form of pamphlets, political articles, newspaper articles, manuscripts, and reference study notes that he was using as legal exhibits in his active legal cases. Plaintiff states that the confiscated legal property constituted factual evidence that “George Jackson; New Afrikan ...


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