# (PC) Bland v. Cox

> District Court, E.D. California · June 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10019845

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JOSHUA BLAND, No. 2:20-CV-0715-DMC-P
12 Plaintiff,
13 v. ORDER
14 DEREK COX, et al.,
15 Defendants.
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17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s complaint. See ECF No. 1.
19 The Court is required to screen complaints brought by prisoners seeking relief
20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or
22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
2 with at least some degree of particularity overt acts by specific defendants which support the
3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
4 impossible for the Court to conduct the screening required by law when the allegations are vague
5 and conclusory.
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7 I. PLAINTIFF’S ALLEGATIONS
8 Plaintiff, Joshua Bland, is an inmate currently incarcerated at CSP Corcoran.
9 Plaintiff names the following defendants: (1) Derek Cox, Correctional Officer at High Desert
10 State Prison, (2) State Department of Corrections and Rehabilitation, (3) High Desert State
11 Prison, and (4) J. Quam, CC II at High Desert State Prison.
12 Plaintiff claims that defendants violated his First, Fourth, Fifth, and Fourteenth
13 Amendment rights by interfering with his mail and stealing his personal property on March 29,
14 2019. Plaintiff alleges that the High Desert State Prison mailroom intercepted three explicit
15 photographs on the grounds that they were contraband prohibited by CCR’s Title 15 sections.
16 Plaintiff claims that the mailroom confiscated the property because they are biased against
17 plaintiff because he is a pedophile and a homosexual. Plaintiff also alleges that High Desert State
18 Prison stole the three photographs without just cause or compensation. Plaintiff claims he
19 suffered a loss of property, loss of funds, and fraud as a result of defendants’ actions.
20 Plaintiff also claims that defendants violated his First, Fourth, Fifth, and
21 Fourteenth Amendment rights by retaliating against him. On or around May 14, 2019, plaintiff
22 alleges that Officer Cox read plaintiff’s grievance response to the entire cell block and called
23 plaintiff sexually inappropriate and other insulting names. Plaintiff’s complaint does not clearly
24 explain whether Officer Cox read the grievance response aloud due to his distaste for plaintiff’s
25 sexuality or as retaliation for plaintiff having filed a prison grievance. Plaintiff also claims that
26 while he was hospitalized in June 2019, Officer Cox ransacked his cell and destroyed his hearing
27 aid, postage stamps, and legal books. Plaintiff also alleges that defendants falsely accused him of
28 “gassing” a police officer, which false allegation followed plaintiff filing a prison grievance.
1 Plaintiff also claims that on or around June 26th, 2019, Officer Cox accused plaintiff of
2 purposefully biting his finger. Finally, plaintiff alleges that Officer Cox conspired with other
3 officers at the Department of Corrections and Rehabilitation to oppress plaintiff because he is
4 homosexual and a pedophile. Plaintiff claims he suffered fear, misery, extreme emotional distress,
5 severe mental anguish, a broken lip, and permanent trauma to his right eye due to defendants’
6 actions.
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8 II. DISCUSSION
9 The Court finds that plaintiff’s claims fail in five respects. First, plaintiff cannot
10 establish that the mailroom’s confiscation of his contraband photographs violated his First,
11 Fourth, Fifth, or Fourteenth Amendment rights. Second, § 1983 is not the appropriate vehicle of
12 relief for plaintiff’s claim that Officer Cox destroyed his personal property. Third, plaintiff has
13 failed to allege a cognizable First Amendment violation because plaintiff’s claims of defendants’
14 false accusations do not establish the adverse conduct necessary for a retaliation claim. Fourth,
15 plaintiff has failed to allege a cognizable First Amendment or Eighth Amendment claim against
16 Officer Cox because plaintiff has not established that Cox’s public recital of a grievance appeal
17 was retaliatory or rose to the level of unusually gross verbal harassment. Fifth, plaintiff has failed
18 to allege sufficient facts to support his claim that Officer Cox conspired with other officers to
19 treat plaintiff differently because of his sexuality.

20 A. First, Fourth, Fifth, and Fourteenth Amendment Mailroom Claims
21 “[A] prison inmate retains those First Amendment rights that are not inconsistent
22 with his [or her] status as a prisoner or with the legitimate penological objectives of the
23 corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974); see also Jones v. Williams, 791
24 F.3d 1023, 1035 (9th Cir. 2015); Clement v. Cal. Dep’t. of Corr., 364 F.3d 1148, 1151 (9th Cir.
25 2004) (per curiam); Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003); Rizzo v.
26 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). A regulation that impinges on First Amendment
27 rights “is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482
28 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 528 (2006); Overton v. Bazzetta, 539
1 U.S. 126, 132 (2003); Shaw v. Murphy, 532 U.S. 223, 229 (2001); Lewis v. Casey, 518 U.S. 343,
2 361 (1996); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Ashker, 350 F.3d
3 at 922; Morrison v. Hall, 261 F.3d 896, 901 (9th Cir. 2001); Mauro v. Arpaio, 188 F.3d 1054,
4 1058 (9th Cir. 1999) (en banc). Prison officials do not need to show that there is no less restrictive
5 mail policy that could serve the same penological interests. See Thornburgh, 490 U.S. at 412;
6 Witherow, 52 F.3d at 265.
7 In light of security concerns, the Ninth Circuit has affirmed censorship of materials
8 containing role-playing or similar fantasy games, Bahrampour v. Lampert, 356 F.3d 969, 976 (9th
9 Cir. 2004); advocating anti-Semitic violence, see Stefanow v. McFadden, 103 F.3d 1466, 1472-75
10 (9th Cir. 1996), and materials from the North American Man/Boy Love Association, see Harper
11 v. Wallingford, 877 F.2d 728, 734 (9th Cir. 1989). In light of concerns about preventing the
12 sexual harassment of prison guards and other inmates, prison officials may prohibit receipt of
13 sexually explicit materials. See Bahrampour, 356 F.3d at 976; Frost v. Symington, 197 F.3d 348,
14 357 (9th Cir. 1999); Mauro, 188 F.3d at 1060.
15 Here, plaintiff cannot establish that the mailroom’s interception of his photographs
16 amounted to First, Fourth, or Fifth Amendment constitutional violations. The Ninth Circuit has
17 held that prison bans on sexually explicit materials are reasonably related to legitimate
18 penological interests and therefore do not violate federal constitutional rights. See Bahrampour,
19 356 F.3d at 979. As a result, plaintiff was not entitled to receive sexually explicit photographs
20 while incarcerated and the photographs he received were subject to confiscation.
21 Further, plaintiff also cannot establish that the mailroom’s confiscation of his
22 photographs amounted to a Fourteenth Amendment equal protection violation. Sexually explicit
23 photographs are banned regardless of the sexual content they display. Therefore, the specific
24 content of plaintiff’s explicit photographs did not play a role in their confiscation and thus did not
25 discriminate against plaintiff.
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1 B. Fifth Amendment Due Process Claim
2 The Due Process Clause protects prisoners from being deprived of life, liberty, or
3 property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to
4 state a claim of deprivation of due process, a plaintiff must allege the existence of a liberty or
5 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672
6 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against the
7 deprivation of property where there is a legitimate claim of entitlement to the property. See Bd.
8 of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are
9 defined, by existing rules that stem from an independent source – such as state law – and which
10 secure certain benefits and support claims of entitlement to those benefits. See id.
11 Where a prisoner alleges the deprivation of a liberty or property interest caused by
12 the random and unauthorized action of a prison official, there is no claim cognizable under 42
13 U.S.C. § 1983 if the state provides an adequate post-deprivation remedy. See Zinermon v. Burch,
14 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984). A state’s post-
15 deprivation remedy may be adequate even though it does not provide relief identical to that
16 available under § 1983. See Hudson, 468 U.S. at 531 n.11. A due process claim is not barred,
17 however, where the deprivation is foreseeable and the state can therefore be reasonably expected
18 to make pre-deprivation process available. See Zinermon, 494 U.S. at 136-39. An available
19 state common law tort claim procedure to recover the value of property is an adequate remedy.
20 See id. at 128-29.
21 Plaintiff cannot successfully establish a § 1983 due process claim because the state
22 provides an adequate post-deprivation remedy. California’s Tort Claims Act provides relief for
23 prisoners who suffer a loss of property due to the wrongful acts of a state official. See CAL. GOVT
24 CODE §844.6 (West 2013). Because plaintiff can recover under California law, § 1983 is not the
25 appropriate vehicle for relief.
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1 C. First Amendment Retaliation Claims
2 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must
3 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory
4 action was not related to a legitimate penological purpose, such as preserving institutional
5 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting
6 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the
7 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);
8 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also
9 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by
10 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also
11 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must
12 establish the following in order to state a claim for retaliation: (1) prison officials took adverse
13 action against the inmate; (2) the adverse action was taken because the inmate engaged in
14 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the
15 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.
16 1. Plaintiff’s Claims Regarding Defendants’ False Accusations
17 Here, plaintiff fails to state a cognizable First Amendment retaliation claim
18 because he has not established that defendants took adverse action against plaintiff for engaging
19 in protected conduct. Plaintiff does not allege that he suffered any negative consequences due to
20 defendants’ accusations that plaintiff “gassed” a corrections officer and intentionally bit Officer
21 Cox’s finger. Plaintiff also does not allege that defendants took any further action beyond verbal
22 accusations directed at plaintiff. There is generally no constitutionally recognized right to be free
23 of verbal harassment. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1987). Therefore, plaintiff
24 has not established the presence of an adverse action necessary for a First Amendment retaliation
25 claim.
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1 2. Plaintiff’s Claim that Officer Cox Publicly Read his Appeal Response
2 Here, plaintiff has failed to state a cognizable retaliation claim because he has not
3 established that Officer Cox read the appeal aloud in retaliation for plaintiff exercising a
4 constitutional right. Plaintiff’s complaint does not make clear whether plaintiff alleges that
5 Officer Cox read his appeal aloud because plaintiff had filed a prison grievance or because
6 Officer Cox disliked his sexuality. See ECF No. 1, p. 5. Although plaintiff exercised a
7 constitutional right by filing a prison grievance, plaintiff’s status as a homosexual and a pedophile
8 does not, in and of itself, amount to the exercise of a constitutional right. Thus, plaintiff has failed
9 to establish a First Amendment retaliation claim against Officer Cox because he has not alleged
10 sufficient facts to establish that Cox took adverse action as a result of the protected activity of
11 filing a grievance, as opposed to some other unprotected conduct or status.
12 D. Plaintiff’s Eighth Amendment Verbal Harassment Claim
13 The treatment a prisoner receives in prison and the conditions under which the
14 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
15 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,
16 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
17 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102
18 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.
19 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with
20 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
21 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when
22 two requirements are met: (1) objectively, the official’s act or omission must be so serious such
23 that it results in the denial of the minimal civilized measure of life’s necessities; and (2)
24 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of
25 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison
26 official must have a “sufficiently culpable mind.” See id. Allegations of verbal harassment do
27 not state a claim under the Eighth Amendment unless it is alleged that the harassment was
28 “calculated to . . . cause [the prisoner] psychological damage.” Oltarzewski v. Ruggiero, 830
1 F.2d 136, 139 (9th Cir. 1987); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),
2 amended by 135 F.3d 1318 (9th Cir. 1998). In addition, the prisoner must show that the verbal
3 comments were unusually gross, even for a prison setting, and that he was in fact psychologically
4 damaged as a result of the comments. See Keenan, 83 F.3d at 1092.
5 Plaintiff’s allegation that Officer Cox read his grievance appeal aloud and called
6 plaintiff insulting names appears to seek an Eighth Amendment verbal harassment claim.
7 Nevertheless, plaintiff has failed to establish a cognizable Eighth Amendment claim for verbal
8 harassment because he has not alleged that he suffered any sort of adverse consequences due to
9 Cox’s actions or that Cox’s comments were unusually gross. While plaintiff generally claims that
10 defendants’ collective actions caused him extreme emotional suffering, he does not allege that
11 Cox’s particular action caused any negative consequences for plaintiff. Further, plaintiff does not
12 elaborate on the contents of the appeal that Officer Cox read aloud. Plaintiff’s general claim that
13 Cox read an appeal aloud does not establish that a verbal recital of the contents of the appeal was
14 unusually gross. Plaintiff’s allegation that Cox called plaintiff “’sexually inappropriate’ and
15 PREA violation type names” also does not rise to the level of unusually gross harassment
16 intended to cause psychological damage. See ECF No. 1, p. 5. Thus, plaintiff has failed to
17 establish that Cox’s comments were unusually gross.
18 E. Fourteenth Amendment Equal Protection Claim
19 “In determining whether a complaint states a claim, all allegations of material fact
20 are taken as true and construed in the light most favorable to the plaintiff.” Barnett v. Centoni, 31
21 F.3d 813, 816 (9th Cir. 1994) (per curiam); see also Estelle v. Gamble, 429 U.S. 97, 99 (1976).
22 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
23 true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when
24 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
25 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
26 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). In Twombly, the Supreme Court
27 held that the standard for stating a claim does not require the appearance, beyond a doubt, that
28 “no set of facts” would entitle the plaintiff to relief. 550 U.S. at 561-63. (abrogating Conley v.
1 Gibson, 355 U.S. 41 (1957), and adopting “plausibility” standard). The Court further explained in
2 Twombly and Iqbal that conclusory statements that merely recite the elements of a claim are
3 insufficient for the purpose of 12(b)(6). See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
4 elements of a cause of action, supported by mere conclusory statements, do not suffice.”);
5 Twombly, 550 U.S. at 555 (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]
6 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of
7 a cause of action will not do).
8 In order to state a § 1983 claim based on a violation of the Equal Protection Clause
9 of the Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional
10 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that
11 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v.
12 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class
13 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v.
14 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940
15 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985).
16 The Court acknowledges that plaintiff attempts to bring a Fourteenth Amendment
17 equal protection claim alleging that Officer Cox conspired with the other officers at the
18 Department of Corrections to oppress plaintiff due to his sexual tendencies. However, plaintiff’s
19 conclusory statement fails to establish a cognizable Fourteenth Amendment violation. Plaintiff
20 does not provide any specific facts or incidents to support his claim outside of stating that the
21 officers practiced the “Green Wall’s ‘code of silence’”. See ECF No. 1, p. 5. Plaintiff does not
22 elaborate on what he means by the phrase, nor does he adequately explain how this “code of
23 silence” was used to discriminate against plaintiff. Plaintiff has failed to establish that defendants
24 intentionally discriminated against plaintiff and that the alleged discriminatory conduct did not
25 have a legitimate penological purpose.
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1 III. CONCLUSION
2 Because it is possible that some of the deficiencies identified in this order may be
3 cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the
4 entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff
5 is informed that, as a general rule, an amended complaint supersedes the original complaint. See
6 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
7 amend, all claims alleged in the original complaint which are not alleged in the amended
8 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if
9 plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make
10 plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be
11 complete in itself without reference to any prior pleading. See id.
12 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
13 conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
14 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how
15 each named defendant is involved, and must set forth some affirmative link or connection
16 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
17 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
18 Plaintiff now has the following choices: (1) plaintiff may file an amended
19 complaint which does not allege the claims identified herein as incurable, in which case such
20 claims will be deemed abandoned and the court will address the remaining claims; or (2) plaintiff
21 may file an amended complaint which continues to allege claims identified as incurable, in which
22 case the Court will issue findings and recommendations that such claims be dismissed from this
23 action, as well as such other orders and/or findings and recommendations as may be necessary to
24 address the remaining claims.
25 Plaintiff is warned that failure to file an amended complaint within the time
26 provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 1260-
27 61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply with
28 Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). See
wOAOe 2 EUV VV EEN OV PIR ee AY ts VT tt

1 | Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
2 Accordingly, IT IS HEREBY ORDERED that:
3 1. Plaintiff's complaint is dismissed with leave to amend; and
4 2. Plaintiff shall file a first amended complaint within 30 days of the date of
5 | service of this order.
6
7 | Dated: June 15, 2020 Ssvcqo_
8 DENNIS M. COTA
9 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10019845. Public record. Not legal advice.