United States District Court, E.D. California
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
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
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.)
second amended complaint, filed on May 2, 2019, is currently
before the Court for screening. (ECF No. 12.)
Screening Requirement and Standard
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).
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
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.
Summary of Plaintiff's Allegations
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.
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.
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.)
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.)
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,
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.)
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