Warren v. Parsons

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 THOMAS WARREN, Case No.: 3:20-cv-00405-JAH-JLB

CDCR #P-60052,

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ORDER:

Plaintiff,

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vs. (1) DENYING PLAINTIFF’S

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MOTION TO APPOINT COUNSEL

C/O PARSONS, et al.,

15 [ECF No. 14]

Defendants.

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AND

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(2) DISMISSING CIVIL ACTION

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FOR FAILING TO STATE A CLAIM

19 PURSUANT TO

28 U.S.C. § 1915(e)(2)(B) AND

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28 U.S.C. § 1915A(b)(1)

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22 Plaintiff Thomas Warren, incarcerated at Richard J. Donovan Correctional Facility

23 (“RJD”) in San Diego, California, is proceeding pro se and in forma pauperis (“IFP”), in

24 this civil rights action pursuant to 42 U.S.C. § 1983.

25 I. Procedural History

26 In his original Complaint, Warren claimed RJD Correctional Officers P. Parsons

27 and John Doe #1, Sgt. C. Godinez, Correctional Counselors E. Aukerman and L. Garnica,

28 Warden D. Paramo, Associate Warden J. Juarez, and an unidentified John/Jane Doe

1 inmate appeals official violated his Fourth, Fifth, Eighth, and Fourteenth Amendment

2 rights when they searched his cell on March 5, 2018, left it in disarray, confiscated his

3 personal property, and thereafter conspired to coverup the wrongdoing by denying his

4 inmate appeals. See Compl., ECF No. 1 at 2-14.

5 On July 6, 2020, the Court granted Warren leave to proceed IFP, but

6 simultaneously screened and dismissed his Complaint sua sponte for failing to state a

7 claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

8 and § 1915A(b)(1). See ECF No. 7. Specifically, the Court dismissed Warren’s Fourth

9 Amendment claims because he “has no expectation of privacy in his prison cell,” see id.

10 at 6 (citing Hudson v. Palmer, 468 U.S. 517, 525-26 (1984)), his Fifth Amendment due

11 process claims because he alleged violations by state, and not federal actors, id. at 7 n.3

12 (citing Castillo v. McFadden, 370 F.3d 882, 889 n.5 (9th Cir. 2004)), his Eighth

13 Amendment claims because he failed to allege any facts sufficient to show the

14 confiscation of his personal property deprived him of “the minimal civilized measure of

15 life’s necessities,” id. at 6 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981), his

16 Fourteenth Amendment claims because California provides an adequate post-deprivation

17 remedy for negligent or intentional deprivations of personal property sufficient to satisfy

18 due process, id. at 7‒8 (citing Barnett v. Centoni, 31 F.3d 813, 816‒17 (9th Cir. 1994)),

19 his conspiracy claims because he failed to allege any of the Defendants entered into any

20 express or implied agreement to violate his constitutional rights, id. at 8 (citing Avalos v.

21 Baca, 596 F.3d 583, 592 (9th Cir. 2010)), and his claims against RJD’s inmate appeals

22 officials because the denial of an administrative grievance, without more, cannot serve as

23 a basis for § 1983 liability. Id. at 8‒9 (citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th

24 Cir. 2003)). The Court also granted Warren leave to file an Amended Complaint, advised

25 his failure to include any Defendant or claim would constitute waiver, and warned that if

26 he failed to fix his pleading deficiencies, the case would be dismissed in its entirety. See

27 id. at 10 (citing Lacey v. Maricopa Cnty, 693 F.3d 896, 928 (9th Cir. 2012); Lira v.

28 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)).

1 Warren has since filed a First Amended Complaint (“FAC”), which re-names

2 Defendants Paramo, Parsons, and Juarez, omits Defendants John Doe #1, Godinez,

3 Aukerman, Garnica, and John/Jane Doe, and adds the California Department of

4 Corrections and Rehabilitation (“CDCR”), former CDCR Secretary M. Cate, CDCR

5 Director of Adult Institutions C. Gipson, RJD Captain E. Garza, RJD Sgts. D. Hampton

6 and Vanderwered, and Does 1-25 as Defendants. See FAC, ECF No. 12 at 1, 6‒9.

7 Warren’s Amended Complaint contains even fewer factual allegations than his

8 original Complaint, but he continues to claim Defendants, “each and every one, act[ed]

9 under color of state law to depriv[e] him” of his personal and intellectual property in

10 violation of the First and Fourteenth Amendments.1 See FAC at 11‒14. The primary

11 focus of his Amended Complaint, however, centers on state law causes of action

12 including allegations of criminal theft, fraud, embezzlement, and conversion. Id. at 17‒

13 19, 23‒28. Warren also asserts multiple violations of intentional infliction of emotional

14 distress and breaches of contract, fiduciary duty, and the covenant of good faith and fair

15 dealing under state tort law. Id. at 19‒23. He seeks $1,098,748 in both compensatory and

16 punitive damages. Id. at 32. Warren has also filed a Motion to Appoint Counsel. See ECF

17 No. 14.

18 II. Motion to Appoint Counsel

19 Warren first seeks the appointment of counsel pursuant to Cal. Penal Code

20 § 2601(d) and Smith v. Ogbuehi, 38 Cal. App. 5th 453 (2019), reh’g denied (Aug. 28,

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23 1 While Plaintiff’s FAC supersedes his original pleading, see Hal Roach Studios, Inc. v. Richard Feiner

& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989), he explicitly incorporates by reference several exhibits

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he submitted in support of his original Complaint in the body of his FAC. See e.g., FAC at 15‒16; see

25 also “Plaintiff’s Request for Judicial Notice of Exhibits,” filed as Exhibits in Support of Complaint, ECF

No. 4. The Court “must consider the complaint in its entirety,” including “documents incorporated into

26 the complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a

claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

27 (2007); Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ.

P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

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1 2019) (Cal. Ct. App. 5th Dist. 2019). See ECF No. 14 at 1‒4.

2 Smith is a non-binding California Court of Appeal decision, however, that

3 discusses the state court’s discretion to appoint counsel to a civil litigant in California

4 court proceedings. See Smith, 38 Cal. App. 5th at 468‒69. And while it requires

5 California courts to consider similar factors, even Smith notes that the appointment of

6 counsel in a federal civil action is governed by 28 U.S.C. § 1915. Id. at 469‒470 (“It

7 follows that the relevant circumstances include, without limitation, the factors listed in

8 the federal decisions for determining whether exceptional circumstances exist in a

9 particular case.”) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)).

10 “[T]here is ‘no constitutional right to counsel in a civil case.’” Adir Int’l, LLC v.

11 Starr Indem. & Liab. Co., 994 F.3d 1032, 1038–39 (9th Cir. 2021) (quoting United States

12 v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cty., Washington, 795 F.2d

13 796, 801 (9th Cir. 1986) (cleaned up)). “Unlike in criminal cases that implicate the Sixth

14 Amendment right to counsel, civil litigants who cannot afford counsel are not

15 constitutionally guaranteed the appointment of a lawyer.” Id. Instead, Title 28, section

16 1915(d) provides that “[t]he court may request an attorney to represent any person unable

17 to afford counsel.” 28 U.S.C. § 1915(e)(1).

18 While Warren has been granted leave to proceed IFP pursuant to 28 U.S.C.

19 § 1915(a), and is proceeding pro se, none of the facts alleged in either his original

20 Complaint or his FAC suggest that this is a case that demands the Court to exercise its

21 limited discretion to request an attorney to represent him pro bono pursuant to 28 U.S.C.

22 § 1915(e)(1). See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v.

23 Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional

24 circumstances” support such a discretionary appointment. Terrell, 935 F.3d at 1017;

25 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist

26 where there is cumulative showing of both a likelihood of success on the merits and a

27 demonstrated inability of the pro se litigant to articulate his claims in light of their legal

28 complexity. Id.

1 As currently pleaded, Warren’s FAC demonstrates that while he may not be

2 formally trained in law, he nevertheless is capable of legibly articulating the facts and

3 circumstances relevant to his claims, which are typical and not legally “complex.”

4 Agyeman, 390 F.3d at 1103. Moreover, for the reasons explained below, Warren has not

5 shown he is likely to succeed on the merits. Therefore, the Court DENIES his Motion for

6 Appointment of Counsel (ECF No. 14).

7 III. Screening of Amended Complaint per to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

8 As Warren now knows, the Prison Litigation Reform Act (“PLRA”) requires the

9 Court to review complaints filed by all persons proceeding IFP and by those, like him,

10 who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

11 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

12 probation, pretrial release, or diversionary program,” at the time of filing “as soon as

13 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

14 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are

15 frivolous, malicious, fail to state a claim, or which seek damages from defendants who

16 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 112,

17 1126-27 (9th Cir. 2000) (en banc) (citing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

18 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

19 A. Standard of Review

20 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious

21 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

22 n.1 (9th Cir. 2014) (citation omitted)). “The standard for determining whether a plaintiff

23 has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is

24 the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a

25 claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v.

26 Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A

27 “incorporates the familiar standard applied in the context of failure to state a claim under

28 Federal Rule of Civil Procedure 12(b)(6)”).

1 Every complaint must contain “a short and plain statement of the claim showing

2 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

3 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

4 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

5 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there

6 are well-pleaded factual allegations, a court should assume their veracity, and then

7 determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

8 “Determining whether a complaint states a plausible claim for relief [is] ... a context-

9 specific task that requires the reviewing court to draw on its judicial experience and

10 common sense.” Id. The “mere possibility of misconduct” falls short of meeting this

11 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th

12 Cir. 2009).

13 While a plaintiff’s factual allegations are taken as true, courts “are not required to

14 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

15 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

16 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

17 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

18 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

19 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

20 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

21 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

22 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.

23 B. Factual Allegations

24 As noted above, Warren includes few specific factual allegations in his FAC and

25 instead incorporates by reference several exhibits he submitted in support of his original

26 Complaint. See ECF No. 4. In the body of his FAC, Warren claims only generally that

27 “on or about March 5, 2018,” “[a]ll Defendant(s) acting under color of state law directly

28 or indirectly caused the deprivation of [his] rights to Free Speech, right to publish, and

1 right to Due Process … by removing, taking, confiscating, or allowing to be confiscated

2 [his] personal, intellectual property, [and] ‘chattel.’” See FAC at 11. Warren claims his

3 property, which consisted of authorized inmate “manuscripts” containing “expression of

4 his hopes, dreams, views, experiences and desires,” was improperly designated as

5 contraband and “stolen” from him. Id. at 13‒16.

6 C. 42 U.S.C. § 1983

7 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

8 privileges, or immunities secured by the Constitution and laws” of the United States.

9 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must

10 allege two essential elements: (1) that a right secured by the Constitution or laws of the

11 United States was violated, and (2) that the alleged violation was committed by a person

12 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of

13 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

14 D. Discussion

15 As noted above, Warren’s FAC asserts two federal causes of action and multiple

16 state law tort and criminal law violations. But because he still fails to allege a plausible

17 claim for relief under either the First or Fourteenth Amendments, his FAC, like his

18 original Complaint, must be dismissed sua sponte pursuant to 28 U.S.C.

19 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126‒27; Wilhelm, 680

20 F.3d at 1121.

21 And although the Court may exercise supplemental jurisdiction over Warren’s

22 multiple purported state law claims, it declines to do so in light of its “dismiss[al] [of] all

23 claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); Sanford v.

24 Member Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all

25 federal-law claims are eliminated before trial, the balance of factors to be considered

26 under the pendent jurisdiction doctrine . . . will point toward declining to exercise

27 jurisdiction over the remaining state-law claims.”).

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1 1. Individual Liability

2 As a preliminary and overarching matter, the Court first finds that Warren’s FAC

3 fails to allege facts sufficient to plausibly show that “each Government-official” he now

4 names as a Defendant “through the official’s own individual actions, has violated the

5 Constitution.” Iqbal, 556 U.S. at 676.

6 In his original Complaint, Warren identified Officer Parsons and Doe #1 (who is

7 no longer named as a Defendant) as the persons who searched his cell on March 5, 2018.

8 See Compl. at 5‒6. In the caption of his FAC, Warren now names the CDCR,2 (former)

9 CDCR Secretary Cate, C. Gipson, Warden Paramo, Associate Warden Juarez, Captain E.

10 Garza, Sgts. D. Hampton and Vanderwered, Parsons, and Does 1-25 as Defendants. See

11 FAC at 1. But in the body of his pleading, he simply describes each Defendant’s title,

12 alleges all were “employed by Defendant CDCR,” id. at 8‒9, and contends Defendants as

13 a group are all “liable in some manner,” that “[a]ny adherence” to the “separate existence

14 of the Defendants” is a “fiction,” and therefore “any individualty [sic] and separateness

15 between [them] cease[s].” Id. at 9, 10.

16 This pleading strategy does not suffice to establish individual liability in a civil

17 rights action, however. In a § 1983 suit, “each Government official, his or her title

18 notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677.

19 Section 1983 provides a cause of action resulting from violations of constitutional or

20 other federal rights by persons alleged to have acted under color of state law. West, 487

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2 The CDCR, of course, is an agency of the State of California, and not a “person” subject to a damages

23 suit under 42 U.S.C. § 1983 at all. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53-54 (1996);

Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (citing Hale v. Arizona, 993 F.2d 1387, 1398-99

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(9th Cir. 1993)); see also Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 6804947, at

25 *3 (S.D. Cal. Nov. 15, 2016) (“The State of California’s Department of Corrections and Rehabilitation

and any state prison, correctional agency, sub-division, or department under its jurisdiction, are not

26 ‘persons’ subject to suit under § 1983.” (citing Groten, 251 F.3d at 851)). See also Will v. Michigan Dep’t

of State Police, 491 U.S. 58, 66 (1989) (“Section 1983 provides a federal forum to remedy many

27 deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy

against a State for alleged deprivations of civil liberties.”); Pennhurst State Sch. & Hosp. v. Halderman,

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1 U.S. at 48; Long, 442 F.3d at 1185. In the Court’s previous screening Order, Warren was

2 advised that for each Defendant named, he must allege facts to plausibly show a causal

3 link between the violation of his rights and an act or omission by that individual person.

4 See ECF No. 7 at 4 (citing Iqbal, 556 U.S. at 678–79; Starr v. Baca, 652 F.3d 1202,

5 1205–06 (9th Cir. 2011)). But in his FAC, Warren rejects the Court’s prior warning,

6 makes no effort to separate the parties, delineate each person’s actions, or explain the role

7 each individual Defendant played in causing a violation of his constitutional rights. See

8 Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (an individual’s

9 liability under § 1983 “is predicated on his ‘integral participation’ in the alleged

10 violation.”) (quoting Chuman v. Wright, 76 F.3d 292, 294–95 (9th Cir. 1996)). “A

11 plaintiff must allege facts, not simply conclusions, t[o] show that [each defendant] was

12 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d

13 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197

14 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983

15 claim.”). “[V]icarious liability is inapplicable to … § 1983 suits.” Iqbal, 556 U.S. at 676.

16 For this reason alone, the Court finds Warren’s FAC fails to state a plausible claim

17 for relief as to any Defendant and is subject to sua sponte dismissal in its entirety

18 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).

19 2. First Amendment Claims

20 Warren contends the confiscation of his property violated his First Amendment

21 rights because it was comprised of “manuscripts” and personal “chattel” which he claims

22 is not the type of contraband prohibited by Cal. Code Regs., tit. 15 § 3006.3 See FAC at

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25 3 Section § 3006 of the California Code of Regulations provides that “[i]nmates may possess only the

personal property, materials, supplies, items, commodities and substances, up to the maximum amount,

26 received or obtained from authorized sources,” and identifies more than 20 specific types of property,

ranging from weapons and explosives to money, tobacco, and wireless communication devices as

27 prohibited. See Cal. Code Regs. tit. 15, § 3006 (emphasis added); id. § 3006(a), (b), (c)(1)‒(21).

“Possession of contraband as defined in section 3000 may result in disciplinary action and confiscation of

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1 12, 14. However, even if he had alleged facts sufficient to establish personal liability on

2 the part of any of the named Defendants, the Court finds his FAC further fails to state any

3 plausible entitlement to relief under the First Amendment. Iqbal, 556 U.S. at 678.

4 “There is no iron curtain drawn between the Constitution and the prisons of this

5 country.” Wolff v. McDonnell, 418 U.S. 539, 555‒56 (1974). But “constitutional rights

6 that prisoners possess are more limited in scope than the constitutional rights held by

7 individuals in society at large.” Shaw v. Murphy, 532 U.S. 223, 229 (2001). “[A] prison

8 inmate retains those First Amendment rights that are not inconsistent with his status as a

9 prisoner or with the legitimate penological objectives of the corrections system.” Pell v.

10 Procunier, 417 U.S. 817, 822 (1974); see also Jones v. Williams, 791 F.3d 1023, 1035

11 (9th Cir. 2015); Clement v. Cal. Dep’t. of Corr., 364 F.3d 1148, 1151 (9th Cir. 2004) (per

12 curiam); Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003); Rizzo v.

13 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). To state a claim, Warren must allege both

14 that “the type of activity he engaged in was protected under the [F]irst [A]mendment and

15 that the state impermissibly infringed on his right to engage in the protected activity.”

16 Rizzo, 778 F.2d at 531.

17 Here, Warren contends Defendants violated the First Amendment by confiscating

18 “manuscripts,” and “st[ealing] [his] ability to publish his works” which were “an

19 expression of his hopes, dreams, views, experiences and desires” pursuant to prison

20 regulations defining excess property as contraband. See FAC at 14. Liberally construed,

21 the Court finds these facts sufficient to plausibly suggest the seizure and confiscation of

22 Warren’s personal writings implicate his First Amendment rights to free speech. See

23 Hawthorne v. Kernan, No. 17-CV-04960-HSG, 2020 WL 6891819, at *4 (N.D. Cal. Nov.

24 24, 2020) (finding prisoner’s claims of having been prevented from “reading what he

25 ///

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maximum quantity permitted, or received or obtained from an unauthorized source.” Cal. Code Regs. tit.

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1 will, when he will” and “writing to whom he will, when he will” due to cell search and

2 confiscation of his books and magazines as sufficient to invoke First Amendment

3 protections).

4 However, Warren does not allege Defendants confiscated his books or personal

5 manuscripts based on their content or in retaliation for his having engaged in any

6 protected activity. See e.g., Lewis v. Casey, 518 U.S. 343, 349-53 (1996) (setting forth

7 elements of an access-to-courts claim and actual injury requirement); Nordstrom v. Ryan,

8 856 F.3d 1265, 1271 (9th Cir. 2017) (discussing a prisoner’s First Amendment right to

9 send and receive mail); Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)

10 (setting out elements of a retaliation claim in the prison context). See also Hebbe, 627

11 F.3d at 341‒42 (noting that although pro se pleadings are construed liberally, a plaintiff

12 must present factual allegations sufficient to state a plausible claim for relief).

13 Instead, Warren challenges the legitimacy of “the CDCR’s own policies, rules, and

14 regulations” as applied to his manuscripts, see Hargis v. Foster, 312 F.3d 404, 410 (9th

15 Cir. 2002), and contends that the “theft” violated both his First Amendment rights and

16 California Penal Code. See FAC at 12.4 But prison regulations that impinge on First

17

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19 4 To the extent Warren alleges Defendants “are criminal in act as well as thought,” and committed acts of

theft, embezzlement, conversion, and fraud in violation of the California Penal Code and Title 15 of the

20

California Code of Regulations throughout his FAC, see, e.g., FAC at 13‒28, he fails to state a claim upon

21 which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b)(1). Criminal statutes

do not give rise to civil liability. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A plaintiff has

22 no right to have another person criminally prosecuted. See Linda R.S. v. Richard D., 410 U.S. 614, 619

(1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of

23 another.”); Johnson v. Craft, 673 F. Supp. 191, 193 (D. Miss. 1987) (“The decision to prosecute a

particular crime is within the authority of the state, and there appears to be no federal constitutional right

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to have criminal wrongdoers brought to justice.”). Further, the mere violation of a prison regulation, which

25 may provide even more procedural protections than mandated by the Constitution, does not give rise to a

cognizable claim for relief. See, e.g., Nible v. Fink, 828 Fed.Appx. 463 (9th Cir. 2020) (violations of Title

26 15 of the California Code of Regulations do not create private right of action); Nurre v. Whitehead, 580

F.3d 1087, 1092 (9th Cir. 2009) (claims under § 1983 must be premised on violation of federal

27 constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11-12 (E.D.

Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right of action under

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1 Amendment rights are “valid if ... related to legitimate penological interests.” Turner v.

2 Safley, 482 U.S. 78, 89 (1987); see also Beard v. Banks, 548 U.S. 521, 528 (2006);

3 Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Shaw v. Murphy, 532 U.S. 223, 229

4 (2001); Lewis, 518 U.S. at 361; Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th

5 Cir. 2005); Ashker, 350 F.3d at 922; Morrison v. Hall, 261 F.3d 896, 901 (9th Cir. 2001);

6 Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc). Simply because

7 prisoners retain certain rights does not mean that their rights are not subject to restrictions

8 and limitations. Bell v. Wolfish, 441 U.S. 520, 545 (1979). Lawful incarceration brings

9 with it the withdrawal or limitation of many privileges and rights that are justified by

10 considerations of the penal system. Id. at 546. Thus, “[t]here must be a “mutual

11 accommodation between institutional needs and objectives and the provisions of the

12 Constitution that are of general application.” Id. (quoting Wolff, 418 U.S. at 566).

13 In California, “[i]nmates shall be permitted to possess in their quarters/living area,

14 state-issued property items, and authorized personal/religious property items” depending

15 on their assigned security level, and/or an institutional mission. See Cal. Code Regs. tit.

16 15 § 3190(a). With some exceptions Warren does not contend apply here, however, “[t]he

17 combined volume of state-issued and allowable personal property items shall not exceed

18 six cubic feet.” Id. § 3190(e). “Contraband” is defined as “anything which is not

19 permitted, in excess of the maximum quantity permitted, or received or obtained from an

20 unauthorized source.” Cal. Code Regs. tit. 15, § 3000 (emphasis added).

21 In fact, Warren offers few specifics as to the circumstances under which his cell

22 was searched on March 5, 2018, how his property came to confiscated, or why he

23 believes its loss violates the First Amendment. At most, Warren incorporates by reference

24 Exhibit A, which is comprised of his CDCR 602 Inmate/Parolee Appeal No. RJD-E-18-

25 2084, dated March 20, 2018, in which he challenged the March 5, 2018 search and

26 seizure of his property, as well as the First and Second Level Appeal Responses dated

27 April 10, 2018, and June 25, 2018, respectively. See FAC at 15; ECF No. 4 at 4‒28.

28 This inmate appeal record shows Officer Parsons conducted a search of Warren’s cell on

1 March 5, 2018 as part of an “institutional wide” search. See ECF No. 4 at 8. Afterward,

2 Warren was issued a cell receipt6 that notes the overall condition of his cell as “poor” and

3 reports that “excess books” were found in his bunk area and confiscated as contraband.

4 Id. at 8, 19. Warren was appointed a staff assistant for an appeal interview conducted on

5 April 10, 2018, and “given the opportunity to provide additional information and to

6 clarify” his claim of not having been given an opportunity to arrange for the disposal of

7 his property pursuant to Cal. Code Regs., tit. 15 § 3191(c).7 However, Associate Warden

8 Juarez determined Officer Parsons “did give [Warren] the option at the time of the search

9 to send home the confiscated items and excess books [per] CCR 3191(c),” but Warren

10 “refused to cooperate and complete the process.” Id. at 9. Because Warren “provided no

11 new evidence, documentation, or information” to support his claims, his appeal was

12 denied. Id. at 8‒9.

13 Nothing in either Warren’s FAC or his exhibits plausibly suggests the March 5,

14 2018 cell search or confiscation of his “excess books” pursuant to Cal. Code Regs., tit. 15

15 § 3190 was not “reasonably related to legitimate penological interests.” Turner, 482 U.S.

16

17

5 “Occupied cells, rooms and dormitory areas, including fixtures and lockers, and any personal and state-

18 issued property of the occupant will be inspected on an infrequent and unscheduled basis.” Cal. Code

Regs. tit. 15, § 3287(a)(1). “Cell and property inspections are necessary in order to detect and control

19 serious contraband and to maintain institution security. Such inspections will not be used as a punitive

measure nor to harass an inmate. Every reasonable precaution will be taken to avoid damage to personal

20

property and to leave the inmate’s quarters and property in good order upon completion of the inspection.”

21 Id. § 3287(a)(2). To the extent Warren’s original Complaint also sought to challenge the reasonableness

of the March 5, 2018 search on Fourth Amendment grounds, the Court found he failed to state a claim.

22 See ECF No. 7 at 5 (citing Hudson, 468 U.S. at 525-26) (“The Fourth Amendment prescription against

unreasonable searches does not apply to the confines of the prison cell.”).

23

6 “The inmate will be given a written notice for any item(s) of personal and authorized state-issued

24

property removed from his or her quarters during an inspection and the disposition made of such property.

25 The notice will also list any contraband picked up or any breach of security noted during the inspection,

and the follow-up action intended by the inspecting officer.” 15 Cal. Code Regs., tit. 15 § 3287(a)(4).

26

7 If a California’s inmate’s personal property does not “meet[] the criteria in section 3190,” he must

27 “select one of the methods listed in sections 3191(c)(1) through 3191(c)(5) for its disposal. See Cal. Code

Regs. tit. 15, § 3191(c). “If the inmate makes no selection or has insufficient funds, staff shall document

28

1 at 89. “Implicit in the regulation of inmate property is the authority to define what an

2 inmate can and cannot possess.” Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019

3 (9th Cir. 2011). “[C]orrectional officials must be permitted to devise reasonable search

4 policies to detect and deter the possession of contraband in their facilities.” Florence v.

5 Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328 (2012) (citing

6 Wolfish, 441 U.S. at 546 (“[M]aintaining institutional security and preserving internal

7 order and discipline are essential goals that may require limitation or retraction of

8 retained constitutional rights of both convicted prisoners and pretrial detainees.”).

9 The task of determining whether a policy is reasonably related to legitimate

10 security interests is “peculiarly within the province and professional expertise of

11 corrections officials.” Wolfish, 441 U.S. at 548. Thus, without more, “[p]rison restrictions

12 on the size [or amount] of personal property that an inmate may possess,” do not

13 impermissibly infringe on an inmate’s First Amendment rights. See Rizzo, 778 F.2d at

14 531; see also Hawthorne, 2020 WL 6891819, at *8 (“[T]he failure to follow proper

15 prison procedures when confiscating or storing property does not, by itself, state a

16 cognizable First Amendment claim for freedom of speech.”); Daniels v. Cleaver, No.

17 2:18-CV-00285-MC, 2020 WL 2044621, at *7 (D. Or. Apr. 27, 2020) (rejecting

18 prisoner’s First Amendment claims on qualified immunity grounds because “[n]o

19 reasonable correctional officer in [Defendants’] positions would have known that

20 reducing an inmate’s excess property and confiscating unauthorized items would violate

21 an inmate’s First Amendment rights.”); cf. Velasquez v. Ahlin, No. 1:18-CV-00053-LJO-

22 SAB PC, 2018 WL 1959541, at *10‒12 (E.D. Cal. Apr. 25, 2018) (finding civil

23 detainee’s “freedom of speech and freedom of expression” challenge to confiscation and

24 property restrictions failed to state a First Amendment claim because in-custody

25 regulations did not prohibit “lawful communication or speech … by other means,” and

26 limits governing storage capacity were not “excessive in relation to the regulation[’]s

27 purpose.”); see also Tarpley v. Allen Cty., Indiana, 312 F.3d 895, 898 (7th Cir. 2002)

28 (finding jail policy limiting volume of in-cell religious reading materials was “reasonably

1 related to the general interest in maintaining safe conditions and in preventing later

2 disputes over lost or damaged items,” and noting “[t]hese are well-established legitimate

3 government concerns.”).

4 3. Fourteenth Amendment Due Process Claims

5 Warren also continues to claim Defendants intentionally, “wrongful[ly],”

6 “deliberate[ly],” “decept[ively],” and “wanton[ly]” searched his cell on March 5, 2018

7 and “commit[ted] theft of [his] property” in violation of the Fourteenth Amendment. See

8 FAC at 12‒15. But his FAC still fails to state a plausible due process claim for relief

9 against any Defendant with respect to the loss of his property.

10 Generally, the “requirements of procedural due process apply only to the

11 deprivation of interests encompassed by the Fourteenth Amendment’s protection of

12 liberty and property.” Burnsworth v. Gunderson, 179 F.3d 771, 774 (9th Cir. 1999). The

13 “Due Process Clause is simply not implicated by a negligent act of an official causing

14 unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S.

15 327, 328 (1986). In addition, “unauthorized intentional deprivation[s] of property by a

16 state employee do[] not constitute a violation of the procedural requirements of the Due

17 Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy

18 for the loss is available.” Hudson, 468 U.S. at 533 (emphasis added). Thus, to the extent

19 Warren claims Defendants committed “wrongful acts of theft and deliberate deception”

20 with respect to his personal property, see FAC at 12, the Due Process Clause is not

21 implicated unless no “meaningful post-deprivation remedy for the loss is [made]

22 available” by the State. Hudson, 468 U.S. at 533; Parratt v. Taylor, 451 U.S. 527 (1981),

23 overruled in part by Daniels, 474 U.S. at 330-31.

24 But as this Court noted in its July 6, 2020 Order, California law provides such a

25 remedy. See Barnett, 31 F.3d at 816–17 (“[A] negligent or intentional deprivation of a

26 prisoner’s property fails to state a claim under section 1983 if the state has an adequate

27 post deprivation remedy. California Law provides an adequate post-deprivation remedy

28 for any property deprivations.”) (citations omitted); see also Teahan v. Wilhelm, 481 F.

1 Supp. 2d 1115, 1120 (S.D. Cal. 2007) (dismissing prisoner’s due process claim regarding

2 cell search, seizure and destruction of television pursuant to Hudson and Barnett);

3 Hawthorne, 2020 WL 6891819, at *2 (finding no due process violation with respect to

4 confiscation of California prisoner’s “hygiene products, reading materials, and legal

5 materials”); Kemp v. Skolnik, No. 2:09-CV-02002-PMP, 2012 WL 366946, at *6 (D.

6 Nev. Feb. 3, 2012) (finding prisoner’s alleged loss or destruction of newspaper,

7 magazines, and books failed to state a Fourteenth Amendment claim pursuant to Hudson

8 and noting that “[i]f Plaintiff wishes to recoup the value of the alleged lost materials, he

9 will have to file a claim in small claims court in state court.”).

10 In fact, Defendants Juarez and Paramo advised Warren of his right to “submit a

11 claim directly with the California Victims Compensation and Government Claims Board

12 (formerly known as the State Board of Control), Government Claims Unit” when they

13 denied his CDCR Inmate/Parolee Appeal Log No. RJD-E-18-02084 at both the first and

14 second levels of review. See ECF No. 4, Ex. A at 9, 14, 27‒28. Warren admits he

15 “continu[ed] [to] … ma[ke] demand[s] on CDCR” and challenged the loss of his property

16 through California’s Government Claims Unit. See FAC at 26. His tort claim was also

17 rejected. See ECF No. 4, Ex. C at 31‒33 (Cal. Dept. of General Services July 26, 2018

18 Letter rejecting California Government Claims Program Claim No. 18006359).8

19 To the extent Warren also now alleges Defendants “violated his rights, based on a

20 state[-]created liberty interest” with respect to the possession of his “personal, intellectual

21 property, [or] chattel,” see FAC at 11 (emphasis added), he also fails to state a plausible

22

23

24

8 “California’s Government Claims Act requires that a tort claim against a [state] public entity or its

25 employees for money or damages be presented to the [Department of General Services] no more than six

months after the cause of action accrues.” Lopez v. Cate, No. 1:10-cv-01773-AWI, 2015 WL 1293450, at

26 *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2). The Department of

General Services was formerly known as the Victim Compensation and Government Claims Board.

27 McCoy v. Torres, No. 1:19-CV-01023-NONE-JLT PC, 2020 WL 5257842, at *2 (E.D. Cal. Sept. 3, 2020),

report and recommendation adopted, 2021 WL 111748 (E.D. Cal. Jan. 12, 2021).

28

1 claim for relief. See Iqbal, 556 U.S. at 678. A prisoner possesses a protected liberty

2 interest under the Due Process Clause of the Fourteenth Amendment only “when a

3 change occurs in confinement that imposes an ‘atypical and significant hardship ... in

4 relation to the ordinary incidents of prison life.’” Resnick v. Hayes, 213 F.3d 443, 448

5 (9th Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995) (emphasis added)).9

6 But a violation of state administrative regulations, without more, does not give rise to a

7 deprivation of a protected liberty interest. See Sandin, 515 U.S. at 481–84. And while

8 Warren does allege Defendants “failed to accurately represent/inform [him] of what had

9 been taken,” and did not “properly” itemize the items confiscated from his cell on a cell

10 search receipt, see FAC at 15, “[a]n itemized receipt” does not implicate any plausible

11 liberty interest, and “is not required by the Fourteenth Amendment.” See Hawthorne,

12 2020 WL 6891819, at *5.

13 Instead, the level of hardship necessary to show a liberty interest must be

14 determined on a case-by-case basis. Wilkinson v. Austin, 545 U.S. 209, 223 (2005)

15 (noting that “[i]n Sandin’s wake the Courts of Appeals have not reached consistent

16 conclusions for identifying the baseline from which to measure what is atypical and

17 significant in any particular prison system.”). “[T]he touchstone of the inquiry into the

18

19

9 This Court is unaware of any published Ninth Circuit decision applying Sandin to a prisoner’s property

20

confiscation claims, and at least one district court in California has noted it is not clear Sandin’s analysis

21 should apply. See Lopez v. Holler, No. 18-CV-04387-WHO (PR), 2020 WL 1429748, at *3 (N.D. Cal.

Mar. 24, 2020). However, many federal district courts in California, including the Southern District, have

22 assumed the confiscation and/or destruction of an inmate’s personal belongings could potentially

implicate a Fourteenth Amendment liberty interest under Sandin. See id. (citing Martin v. Hurtado, Case

23 No. 3:07-CV-00598-BTM-RBB, 2008 WL 4145683, at *13 (S.D. Cal. Sept. 3, 2008) (deprivation of

television does not pose an “atypical or significant hardship”); Shallowhorn v. Gonzalez, No. 1:11-cv-

24

00305-GBC (PC), 2012 WL 1551342 at *5‒6 (E.D. Cal. Apr. 30, 2012) (temporary deprivation of

25 property does not pose an atypical and significant hardship when compared to the ordinary incidents of

prison life); Eaves v. Castro, No. 1:09-cv-01647-GBC PC, 2011 WL 220017 at *3 (E.D. Cal. Jan. 24,

26 2011) (deprivation of property does not pose an atypical and significant hardship); Vogelsang v. Tilton,

No. CIV S-06-2083 JAM DAD P, 2008 WL 4891213 at *4 (E.D. Cal. Nov. 12, 2008) (restriction on

27 number of appliances a prison could keep in his cell did not impose an atypical or significant hardship);

Owens v. Ayers, No. C 01-3720 SI (PR), 2002 WL 73226 at *2 (N.D. Cal. Jan. 15, 2002) (three-month

28

1 existence of a protected, state-created liberty interest in avoiding restrictive conditions of

2 confinement is not the language of regulations regarding those conditions, but [rather] the

3 nature of those conditions themselves ‘in relation to the ordinary incidents of prison

4 life.’” Id., quoting Sandin, 515 U.S. at 484.

5 California Code of Regulations provide that “[a]n inmate’s right to inherit, own,

6 sell or convey real and/or personal property does not include the right to possess such

7 property within the institutions/facilities of the department.” Cal. Code Regs., tit. 15

8 § 3192 (emphasis added). Thus, the deprivation of Warren’s books, manuscripts, and

9 other property, while “unique” and meaningful to him, see FAC at 12‒14, is neither

10 “atypical” nor a “significant hardship” in relation to the “ordinary incidents” of prison

11 life in California because property restrictions and the confiscation of items classified as

12 contraband are deprivations shared by all persons incarcerated in the State. See Sandin,

13 515 U.S. at 484; Blakely v. Jones, 816 F. App’x 161–162 (9th Cir. 2020) (affirming

14 dismissal of property confiscation claims because the “sanction imposed neither

15 extend[ed] the length of … sentence nor impose[d] an ‘atypical and significant hardship

16 on the inmate in relation to the ordinary incidents of prison life.’” (citation omitted); Lisle

17 v. McDaniels, 681 F. App’x 611, 613 (9th Cir. 2017) (finding prisoner sentenced to death

18 suffered no “atypical and significant hardship” with respect to his placement in the

19 Condemned Men’s Unit (CMU) “[b]ecause all prisoners sentenced to death are housed in

20 the CMU[.]”) (citing Sandin, 515 U.S. at 484).

21 For all these reasons, the Court finds Warren’s FAC fails to allege any plausible

22 claim for relief under either the First or the Fourteenth Amendment, and concludes his

23 federal constitutional claims against all Defendants remain subject to dismissal pursuant

24 to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

25 4. Supplemental State Law Tort Claims

26 Finally, because Warren does not state a cognizable violation of any constitutional

27 right, the Court will decline to exercise supplement jurisdiction as to the state law claims

28 alleged in his FAC pursuant to 28 U.S.C. § 1367(c)(3). See e.g., California Dep’t of

1 Water Res. v. Powerex Corp., 533 F.3d 1087, 1091 (9th Cir. 2008) (“Because the

2 Amended Complaint did not present a federal question, the district court ha[s] the

3 discretion to decline supplemental jurisdiction.” (citing 28 U.S.C. § 1367(c)(3)).

4 Pursuant to 28 U.S.C. § 1367(a), “in any civil action in which the district courts

5 have original jurisdiction, the district courts shall have supplemental jurisdiction over all

6 other claims that are so related to claims in the action within such original jurisdiction

7 that they form part of the same case or controversy under Article III of the United States

8 Constitution.” 28 U.S.C. § 1367(a). A state law claim is part of the same case or

9 controversy when it shares a “common nucleus of operative fact” with the federal claims

10 and the state and federal claims would normally be tried together. Trs. of the Constr.

11 Indus. & Laborers Health & Welfare Trust v. Desert Valley Landscape Maint., Inc., 333

12 F.3d 923, 925 (9th Cir. 2003) (internal quotations and citations omitted). Here, Warren’s

13 state law intentional infliction of emotional distress, breach of contract, breach of

14 fiduciary duty, and breach of the covenant of good faith and fair dealing claims arising

15 from the March 5, 2018 confiscation of his property are based on the same “common

16 nucleus of operative facts” as his First and Fourteenth Amendment claims. See 28 U.S.C.

17 § 1367(a).

18 “The district court may decline to exercise supplemental jurisdiction,” however, if

19 it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

20 § 1367(c)(3). The Supreme Court has cautioned that “if the federal claims are dismissed

21 before trial, ... the state claims should be dismissed as well.” United Mine Workers of Am.

22 v. Gibbs, 383 U.S. 715, 726 (1966); see also King v. Lemos, et al., No. 1:20-CV-01837-

23 NONE-BAM PC, 2021 WL 2038187, at *4 (E.D. Cal. May 21, 2021) (declining to

24 exercise supplemental jurisdiction over prisoner’s state law breach of contract claims

25 related to lost property pursuant to § 1367(c) where prisoner failed to state a cognizable

26 claim for relief under federal law).

27 ///

28 ///

1 Thus, because the Court has found none of the allegations in Warren’s FAC are

2 sufficient to state a plausible First or Fourteenth Amendment claim for relief, it declines

3 to exercise supplemental jurisdiction over all his state law claims pursuant to 28 U.S.C.

4 § 1367(c)(3). “If a district court declines to exercise jurisdiction over a claim asserted

5 under § 1367(a) and the plaintiff wishes to continue pursuing it, []he must refile the claim

6 in state court.” Artis v. D.C., __ U.S. __, 138 S. Ct. 594, 599 (2018).

7 E. Leave to Amend

8 On July 6, 2020, the Court explained Warren’s pleading deficiencies, and because

9 it was not absolutely clear he could not allege additional facts to state a plausible claim

10 for relief, granted him leave to amend. Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

11 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). Despite having

12 had this opportunity, Warren still fails to state either a viable First or Fourteenth

13 Amendment claim against any Defendant. Therefore, the Court finds further amendment

14 would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir.

15 2014) (“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”)

16 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v.

17 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has

18 previously been granted leave to amend and has subsequently failed to add the requisite

19 particularity to its claims, [t]he district court’s discretion to deny leave to amend is

20 particularly broad.” (internal quotation marks omitted) (second alteration in original)).

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

1 ||TV. Conclusion and Orders

2 Accordingly, the Court:

3 1. DENIES Plaintiff's Motion to Appoint Counsel [ECF No. 14];

4 2. DISMISSES this civil action sua sponte without further leave to amend for

5 || failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C.

6 1915(e)(2)(B) and § 1915A(b)(1);

7 3. CERTIFIES that an IFP appeal would not be taken in good faith pursuant

8 || to 28 U.S.C. § 1915(a)(3); and

9 4. DIRECTS the Clerk of Court to enter a final judgment of dismissal and to

10 close the file.

11 IT IS SO ORDERED.

12

13 Dated: August 9, 2021 \ be Mi oS —

14 Hn. John A. Houston

15 nited States District Judge

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