Randy Matthew Cordero v. California Department of Corrections and Rehabilitation

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RANDY MATTHEW CORDERO, Case No.: 3:21-cv-1609-LL-MSB

CDCR #T-37551,

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ORDER: (1) DISMISSING

13 DEFENDANTS FOR FAILING TO

Plaintiff,

STATE A CLAIM PURSUANT TO

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vs. 28 U.S.C. § 1915(e)(2) AND

15 28 U.S.C. § 1915A(b);

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(2) DENYING MOTION FOR

17 F. CAMACHO, M. BAILEY, APPOINTMENT OF COUNSEL

GALAVIZ, A. GUITIERREZ, KAKO, [ECF No. 25]; and

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JOHNSON, DOES #1-20,

19 Defendants. (3) DIRECTING U.S. MARSHAL

TO EFFECT SERVICE

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PURSUANT TO 28 U.S.C. §

21 1915(d) AND FED. R. CIV. P.

4(c)(3)

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24 I. Introduction and Procedural History

25 On March 10, 2021, Randy Matthew Cordero (“Plaintiff” or “Cordero”), a state

26 inmate currently incarcerated at California State Prison, Los Angeles (“LAC”) and

27 proceeding pro se, filed a document entitled “Petition for Writ of Habeas Corpus By a

28 Person in State Custody 28 U.S.C. § 2254” in the United States District Court for the

1 Central District of California and given the case number 5:21-cv-0444-JAK-ADS. See ECF

2 No. 1 at 1.

3 Based on preliminary review, the Court in the Central District issued an “Order

4 Regarding Screening” on April 1, 2021. ECF No. 4. Cordero did not file a response. On

5 May 21, 2021, the Court dismissed the petition, concluding that the claims raised by

6 Cordero “solely challenge the condition of his confinement in that the allegations relate to

7 specific conditions at R.J. Donovan Correctional Facility.” ECF No. 5. at 3. The Court

8 further stated that “despite being notified” that he could consent to having the Petition

9 “convert[ed] to a civil rights complaint under 42 U.S.C. § 1983,” Cordero failed to respond.

10 Id. at 4.

11 Cordero filed two “letters” with the Court in response to the dismissal. See ECF Nos.

12 6 & 7. In them, he stated that he received the May 21, 2021 Dismissal Order but had not

13 received the April 1, 2021 Screening Order providing him with an opportunity to respond.

14 See id. Based on the letters, the Court granted Cordero leave to file a response to the

15 Screening Order. See ECF No. 8. Cordero filed a Request to Proceed In Forma Pauperis on

16 June 29, 2021 (ECF No. 10), followed by two letters in which he suggested he was

17 attempting to file a civil action pursuant to 42 U.S.C. § 1983. See ECF Nos. 12 & 13.

18 On September 14, 2021, the United States District Court for the Central District of

19 California construed Cordero’s letters as providing the necessary “informed consent” and

20 converted the habeas action to a civil rights action pursuant to 42 U.S.C. § 1983. ECF No.

21 14 at 5. In the same order, the Court concluded that because Cordero’s claims related to

22 events which occurred while he was an inmate at RJD and contained references to

23 correctional officers who appeared to work at RJD, venue was proper in the Southern

24 District of California and the case was transferred here. Id. at 6.

25 On November 4, 2021, this Court granted Plaintiff’s Motion to Proceed In Forma

26 Pauperis and dismissed the Complaint for failing to state a claim pursuant to 28 U.S.C.

27 §§ 1915(e)(2) and § 1915A(b). ECF No. 19. The Court gave Plaintiff 45 days to file an

28 amended complaint. See id. at 14. Plaintiff filed his First Amended Complaint (“FAC”) on

1 December 17, 2021. ECF No. 22. He filed a Motion to Appoint Counsel on January 21,

2 2022 (ECF No. 25), and a Declaration in Support of his FAC on February 28, 2022. ECF

3 No. 26 (“Pl.’s Decl.”)

4 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)

5 A. Standard of Review

6 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-answer

7 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the

8 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

9 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

10 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing

11 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

12 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the

13 targets of frivolous or malicious suits need not bear the expense of responding.’”

14 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

15 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

16 “The standard for determining whether a plaintiff has failed to state a claim upon

17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

19 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

22 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

23 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

24 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

26 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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

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

1 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-

2 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;

3 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

4 B. Plaintiff’s Allegations

5 Cordero alleges that on June 29, 2020, Parsons,1 a correctional officer at RJD

6 informed Cordero and his cellmate that another inmate, W.,2 had attempted suicide. FAC,

7 at 6. Parsons told Plaintiff that W. had overdosed on his own medication and suggested

8 that Plaintiff may have provided it. Id. Cordero denied giving the inmate medication.

9 Cordero informed Parsons that W. had told him he wanted to kill himself because

10 Correctional Officer Parker3 had insulted W. over the RJD public announcement system.

11 Id. Cordero alleges Parsons was attempting to conceal Parker’s misconduct by blaming

12 Cordero and his cellmate for assisting W. with his suicide attempt. Id.

13 A few days later, on July 9, 2020, several inmates warned Cordero and his cellmate

14 that correctional officers were telling inmates to avoid them. Cordero alleges this was

15 because Cordero had confronted Parsons “about attempting to blame me and my cellie for

16 inmate [W.’s] suicide attempt.” Id. As a result, Cordero became afraid for his safety. Id. at

17 7. Cordero’s Post-Traumatic Stress Disorder (“PTSD”) was “triggered” and his “fear,

18 anxiety and depression [were] amplified.” Id. Cordero sought assistance from Mental

19 Health Services but the social worker, Cabandon,4 failed to help him with his emotional

20 distress. Id. at 8. When Cordero reported misconduct by correctional officers to Cabandon,

21 she was incredulous and failed to report his accusations to her supervisor. Id. Cordero also

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24 1 Parsons is not a named defendant.

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2 To protect his privacy the Court will refer to this inmate by his last initial only.

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27 3 Parker is not a named defendant.

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1 suggests that “mental health clinicians [at RJD] are over-familiar with officers,” and this

2 over-familiarity has led to “some mental health staff and some officers openly discussing”

3 inmates’ care. Id. Cordero filed a grievance against Parsons and Parker on July 9, 2020,

4 given appeal #18480, which was initially signed and processed by Correctional Officer

5 Camacho. See FAC at 44–45, 98–99. On September 17, 2020, the CDCR issued its ruling

6 on Cordero’s appeal #18480, finding no misconduct. Id. at 46.

7 Around that same time, Cordero had been “discretely reporting his observations of

8 staff misconduct to attorneys” at a law firm representing California prison inmates in a

9 class action lawsuit. Id. at 10. About “a week before” August 21, 2020, Cordero helped a

10 fellow inmate named Lewis, who suffers from developmental disabilities, fill out a health

11 care grievance form. See id. at 11; see also Pl.’s Decl. at ¶ 4. Cordero also gave Lewis the

12 name and mailing address of the attorney who had been assisting him with his misconduct

13 allegations. FAC at 11; Pl.’s Decl. at ¶¶ 4–5.

14 On August 21, 2020, Cordero saw several correctional officers approach Lewis’ cell.

15 FAC at 11; Pl.’s Decl. at ¶ 5. The officers––Defendants Camacho, Bailey, Kako, Galaviz

16 and Gutierrez–– appeared to be “confronting” Lewis “in an aggressive manner.” FAC at

17 11. Cordero yelled out his cell door to the correctional officers: “Whatever you do, don’t

18 hurt [Lewis]. We’re watching you.” Id. Shortly thereafter, Bailey proceeded toward

19 Cordero’s cell. FAC at 11; see also Pl.’s Decl. at ¶ 6. When he got there, he stated “Hmmm,

20 I thought I saw something” and then walked back to where the group of correctional

21 officers were still gathered, outside Lewis’ cell. FAC at 11. The officers handcuffed Lewis

22 and escorted him out of the housing unit. Camacho, Bailey and Kako “roll[ed] up” Lewis’

23 property because he was being sent to “the hole.” Id.; see also Pl.’s Decl. at ¶ 7.

24 Shortly thereafter, Cordero looked out his cell and saw Camacho in the dayroom,

25 going through Lewis’ property and taking inventory when Camacho suddenly stopped.

26 Camacho and Bailey then came back upstairs to Cordero’s cell. FAC at 11. When they got

27 there Camacho said, “Hey, I found that correspondence you gave to Lewis with your

28 signature on it.” Id. Cordero understood that to mean that Camacho had found a note

1 Cordero wrote for Lewis on how to fill out a grievance form. The note also included the

2 name and mailing address of an attorney and included allegations of misconduct committed

3 by Camacho.5 Camacho was “visibly upset” and told Cordero that he needed to search his

4 cell for a cell phone because the correspondence found in Lewis’ cell purportedly had an

5 Instagram address written on it. Id. at 11–12. Cordero denied having a cell phone or writing

6 any Instagram address on the note found in Lewis’ cell. Id. at 12. He asked to see the note

7 and Camacho refused. Cordero then asked for a sergeant to be present for the search

8 because he was afraid he was going to get beat up by correctional officers if he left his cell.

9 Id. Ultimately however, Cordero and his cellmate were removed from the cell and taken to

10 separate showers while Camacho, Bailey, Kako, Galaviz and Gutierrez conducted a cell

11 search. Id. at 12.

12 At some point, Galaviz exited the cell carrying one of Cordero’s “legal expanding

13 envelopes,” some homemade crafts and other personal items belonging to Cordero. Id.

14 After the search, Camacho and Bailey escorted Cordero back to his cell. The cell was

15 “completely trashed.” Pl.’s Decl. at ¶ 10. Legal documents were strewn throughout the cell,

16 photo albums were ripped up, and personal items were tossed in the toilet. FAC at 13.

17 Cordero called for Camacho and asked why they ripped up his photo albums. He asked for

18 a receipt so he could report the damage to his photo albums. Cordero also stated he wanted

19 to report Galaviz for stealing his documents. Id. at 14. Camacho got angry at Cordero’s

20 request and told him that if he were to push the issue and report them he would write

21 Cordero up for possessing contraband. Cordero responded “What contraband? There’s no

22 contraband in our cell. I want my cell search receipt.” Id. at 14.

23 Cordero states Camacho got increasingly irate. Pl.’s Decl. at ¶ 12. Cordero heard the

24 “tray slot” open and he saw Camacho put his hand through the slot with a can of pepper

25 spray. Camacho then sprayed both Cordero and his cellmate. Id.; FAC at 14. Cordero

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5 The alleged misconduct in the note did not pertain to Cordero but alleged Camacho had

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1 dropped to the ground but Camacho continued to yell, “Get the fuck down!” while he

2 sprayed him. FAC at 14. Camacho then turned the pepper spray on Cordero’s cellmate.

3 After a short time, Camacho turned his attention back to Cordero and sprayed him a second

4 time, despite Cordero already being on the ground. Camacho then had Bailey give him

5 another can of pepper spray, which he used to spray Cordero and his cellmate a third time.

6 Id. at 15.

7 Camacho then ordered Cordero to crawl backwards out of the cell and he complied.

8 By that time Galaviz and Gutierrez had arrived. Camacho told Galaviz and Gutierrez to

9 take Cordero to holding cages in the gym. Id. at 15. While being escorted, Galaviz

10 “slammed [Cordero’s] head into the wall” and stated: “Fuckin’ piece of shit, Cordero,

11 tellin’ on us.” Id. at 15. During the walk to the gym, Gutierrez repeatedly told Cordero to

12 “stop resisting” (Pl.’s Decl. at ¶16) and jerked Cordero’s body “to make it look like he was

13 resisting.” FAC at 15. Cordero states he believes this was to bait him into fighting back so

14 they could use even more physical force against him in retaliation for reporting staff

15 misconduct to an attorney. Id. at 15–16. At some point, Gutierrez “stole” Cordero’s address

16 book and a letter he had written addressed to the law firm of the attorney he had spoken to

17 previously. Id. at 16.

18 Once in the gym, Cordero asked for decontamination to wash the pepper spray off

19 his face and body. Id. at 16. He was in extreme discomfort and distress. Gutierrez told

20 another officer not to decontaminate Cordero. Id. Galaviz told Cordero to refuse medical

21 treatment and not to report his injuries. Galaviz also falsely told medical staff that Cordero

22 had refused decontamination. Cordero states that while he was having trouble breathing

23 and crying out in pain, Galaviz and Gutierrez laughed at him and failed to summon help.

24 Id. at 16.

25 Later, Cordero alleges, Camacho attempted to justify pepper spraying Cordero by

26 filing a false claim of battery against him. Camacho submitted a rule violation report stating

27 Cordero had punched his cell door window so hard it broke the glass and caused a fragment

28 to hit Camacho, and that he only used the pepper spray because he feared for his safety. Id.

1 at 102; see also Pl.’s Decl. 19–20. Cordero alleges he had no injuries to his hand and

2 Camacho concocted the false allegation to justify his unnecessary use of pepper spray. Pl.’s

3 Decl. at ¶ 20, 22–23.

4 Cordero further alleges his access to courts was obstructed when RJD and SAC

5 officials failed to properly handle his legal mail. FAC at 18–19. He states that on January

6 31, 2021, while still an inmate at RJD, several “Doe” Defendants failed to properly mail a

7 petition for writ of habeas corpus to the San Diego County Superior Court. Id. at 18.

8 Cordero addressed the petition to the “San Diego Superior Court at 220 W. Broadway in

9 San Diego, California 92101.” Id. at 18. Eight days later, on February 8, 2021, the envelope

10 was returned to Cordero with a stamp stating, “Return to Sender.” Id. Other notations on

11 the envelope stated “not at this address” and “vacant lot.” Id.

12 Further, Cordero alleges that on June 16, 2021, after he was transferred to SAC,

13 Correctional Officer G. Johnson and Does 11–20 failed to properly handle his legal mail.

14 Id. at 19. Cordero states that he attempted to send documents related to a civil rights

15 complaint filed pursuant to 42 U.S.C. § 1983 in case number 5:21-cv-0444-JAK-ADS to

16 the United States District Court for the Central District of California. Id. at 19, 101. Johnson

17 told him he “doesn’t do legal mail” and to just put the mail, which included the complaint,

18 in the “mail bag” without being sealed properly. Id. at 19. Cordero claims the complaint

19 “never made it to the Central District.” Id. Cordero filed a grievance the next day, stating

20 that Johnson told him he “could have 2nd Watch” sign for the outgoing legal mail later that

21 day or he could mail it with Johnson by putting it in the mail bag unsealed. Id. at 101.

22 Cordero declined to give the mail to Johnson unsealed. Id.

23 In his FAC, Cordero alleges Defendants Camacho, Bailey, Galaviz, Gutierrez and

24 Kako: (1) used excessive force and/or failed to protect him, in violation of his Eighth

25 Amendment rights and (2) retaliated against him in violation of his First Amendment

26 rights. Id. at 2. He also contends Galaviz and Gutierrez were deliberately indifferent to his

27 serious medical needs after he was pepper sprayed, in violation of the Eighth Amendment.

28 Id. at 5. Further, he alleges RJD Doe Defendant #1 retaliated against him by failing to

1 process his grievance; and that RJD Doe Defendants #2–10, SAC Doe Defendants #11–20

2 and Johnson interfered with his legal mail in violation of his First Amendment right to

3 access to courts. Id. at 3. Finally, he argues Defendants are liable under California tort law

4 and the California Penal Code. Id. at 4. He seeks compensatory and punitive damages of

5 $3,000,000 each, as well as injunctive relief. Id. at 21.

6 C. 42 U.S.C. § 1983

7 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

8 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

9 1063, 1067 (9th Cir. 2006); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

10 (1978) (“[M]unicipalities and other local governmental units … [are] among those persons

11 to whom § 1983 applies.”). To state a claim under section 1983, Plaintiff must allege two

12 essential elements: (1) that a right secured by the Constitution or laws of the United States

13 was violated and (2) that the alleged violation was committed by a person acting under the

14 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d 1030,

15 1035‒36 (9th Cir. 2015).

16 1. Legal Mail and Access to Courts

17 Cordero alleges that Doe Defendants #2-10 at RJD, Johnson and Doe Defendants

18 #11-20 at SAC violated his First Amendment rights by hindering his access to courts. FAC

19 at 18–19. Prisoners have a constitutional right of access to the courts. See Lewis v. Casey,

20 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). To establish a claim

21 for any violation of the right of access to the courts, the prisoner must prove that there was

22 an inadequacy in the prison’s legal access program that caused him an actual injury. See

23 Lewis, 518 U.S. at 349–51. To prove an actual injury, the prisoner must show that the

24 inadequacy in the prison’s program hindered his efforts to pursue a non-frivolous claim

25 concerning his conviction or conditions of confinement. See id. at 351, 354–55.

26 Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v.

27 Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407

28 (1989)). A prison, however, may adopt regulations or practices which impinge on a

1 prisoner’s First Amendment rights as long as the regulations are “reasonably related to

2 legitimate penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner

3 standard applies to regulations and practices concerning all correspondence between

4 prisoners and to regulations concerning incoming mail received by prisoners from non-

5 prisoners. See Thornburgh, 490 U.S. at 413.

6 Prison officials may institute procedures for inspecting “legal mail,” e.g., mail sent

7 between attorneys and prisoners, see Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974)

8 (incoming mail from attorneys), and mail sent from prisoners to the courts, see Royse v.

9 Superior Court, 779 F.2d 573, 574–75 (9th Cir. 1986) (outgoing mail to court). But

10 “prisoners have a protected First Amendment interest in having properly marked legal mail

11 opened only in their presence.” Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211

12 (9th Cir. 2017); see also O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (finding

13 the opening and inspecting of “legal mail” outside the presence of the prisoner may have

14 an impermissible “chilling” effect on the constitutional right to petition the government).

15 “Legal mail” may not be read or copied without the prisoner’s permission. See Casey

16 v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994), rev’d on other grounds, 518 U.S. 343 (1996).

17 The Ninth Circuit has emphasized that there is a clear difference between inspecting

18 outgoing legal mail for contraband and reading it under Wolff, 418 U.S. 539 at 577, such

19 that prison officials may not circumvent this prohibition by reading an inmate’s outgoing

20 legal mail in his presence because this practice does not ameliorate the chilling effect on

21 the inmate’s Sixth Amendment rights. See Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir.

22 2014) (Nordstrom I) (reversing district court’s dismissal of the complaint for failure to state

23 a claim after finding complaint stated a cognizable 6th Amendment claim based on

24 prisoner’s allegations that prison officials read his legal mail, that they claimed entitlement

25 to do so, and his right to private consultation with counsel was chilled); Nordstrom v. Ryan,

26 856 F.3d 1265, 1272 (9th Cir. 2017) (Nordstrom II) (on appeal after remand of Nordstrom

27 I, holding that prison policy requiring officials to confirm that outgoing letters qualified as

28 legal mail failed to meet standard that officials may inspect but not read outgoing legal

1 mail). But again, prison officials may establish that legitimate penological interests justify

2 the policy or practice. See O’Keefe, 82 F.3d at 327.

3 Here, Cordero alleges Doe Defendants #2–10 interfered with his legal mail at RJD.

4 FAC, at 3. Specifically, he states that on January 31, 2021, he attempted to mail a state

5 petition for writ of habeas corpus to the San Diego County Superior Court. Id. at 18. He

6 alleges that on February 8, 2021, he received the envelope back stamped, “return to

7 sender,” “not at this address” and “vacant lot.” Id. The five postal stamps on the envelope

8 had not been “marked over by the meter from the U.S. Post Office [and] this gave [Cordero]

9 the indication that [his] state habeas petition never made it out of the prison.” Id. But

10 Cordero must allege a deliberate delay of legal mail which adversely affects legal

11 proceedings to present a cognizable claim for denial of access to the courts. See Jackson v.

12 Procunier, 789 F.2d 307, 311 (5th Cir. 1986). Isolated instances of interference with mail

13 without any evidence of improper motive have been found insufficient to state a

14 constitutional claim. See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (finding

15 negligent mishandling of inmate mail insufficient to state a constitutional claim); Smith v.

16 Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (concluding isolated incidents of mail

17 interference without any evidence of improper motive or resulting interference with the

18 right to counsel or access to the courts do not give rise to a constitutional violation);

19 Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997) (“we have never held or suggested

20 that an isolated, inadvertent instance of opening incoming confidential legal mail will

21 support a § 1983 damage action”); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (an

22 isolated incident of mail tampering is usually insufficient to establish a constitutional

23 violation).

24 Cordero has included no allegations to suggest any wrongful conduct by any RJD

25 Doe Defendant that resulted in the interference with the mail. He offers nothing but

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1 speculation that the envelope “never made it out of the prison.” The “mere possibility” of

2 interference or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short

3 of meeting plausibility standard required to state a claim. Iqbal, 556 U.S. at 678. Moreover,

4 Cordero fails to allege any facts to show “actual injury” “such as the inability to meet a

5 filing deadline or to present a claim,” with respect to any case. Lewis, 518 U.S. at 348;

6 Jones, 393 F.3d at 936. In short, the FAC is devoid of any factual allegations of any conduct

7 by RJD Doe Defendants #2–10 by which the Court could infer that Plaintiff’s federal rights

8 were violated. See Iqbal, 556 U.S. at 678.

9 Cordero has likewise failed to state an access to courts claim as to Johnson and SAC

10 Doe Defendants #11–20. In his FAC, Cordero claims he attempted to mail legal documents

11 in a civil rights case filed in the United State District Court for the Central District of

12 California Case No. 5:21-cv-0444-JAK-ADS. FAC at 19, 101. Johnson refused to accept

13 his legal mail unless it was unsealed but told Cordero that “2nd Watch” could accept it.

14 See id. at 101. He admits he was told he could hand over the legal mail later that day. Id.

15 Construing the FAC liberally, Cordero has, at most, alleged an isolated instance of

16 interference with his mail without any evidence of improper motive on the part of Johnson

17 or Does #11-20. This is insufficient to state a constitutional claim. See Stevenson, 877 F.2d

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6 Cordero states he addressed the envelope to San Diego County Superior Court at “220

21 W. Broadway, San Diego, Calif[ornia], 92101.” FAC at 18. The Court takes judicial

notice of the fact that the San Diego County Superior Court’s location and mailing

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address is 1100 Union Street, San Diego, California 92101. See Harris v. Cnty. of

23 Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (noting that the court may take judicial

notice of “undisputed matters of public record”). The San Diego location at 220 W.

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Broadway was closed in 2017 and the building demolished. See Public Notice, Sup. Ct of

25 San Diego Cnty., “Closure of Courthouse Buildings (“Old Central Courthouse)/Transfer

of Operations” at https://www.sdcourt.ca.gov/sites/default/files /sdcourt/general

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information/news/2017announcements/ 2017-5-12%2C%20public%20notice% 2C%20

27 closure%20of%20buildings%20%28central% 29.pdf (Mar.17, 2017) (visited April 19,

2022).

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1 at 1441. In addition, he has not plausibly alleged that he suffered any actual injury, “such

2 as the inability to meet a filing deadline or to present a claim.” See Lewis, 518 U.S. at 348.

3 Indeed, the civil case he states he was attempting to pursue, United State District Court for

4 the Central District of California Case No. 5:21-cv-0444-JAK-ADS, is this very case. The

5 Central District transferred the case to this Court on September 14, 2021 and it was given

6 the instant case number. See ECF No. 14. Thus, Plaintiff has not alleged actual injury. See

7 Lewis, 518 U.S. at 348.

8 In sum, Cordero has failed to state an access to courts claim as to RJD Doe

9 Defendants #2–10, Johnson and SAC Doe Defendants #11–20. See Lewis, 518 U.S. at 349–

10 51; Iqbal, 556 U.S. at 678. Johnson and the Doe Defendants #2–20 are dismissed without

11 prejudice.

12 2. Doe Defendant #1

13 Construing Cordero’s FAC liberally, he appears to allege Doe Defendant #1,

14 identified as an RJD “Appeals Coordinator,” retaliated against Cordero by failing to

15 process his grievance expeditiously. FAC at 7. Plaintiff states he filed a staff complaint

16 related to misconduct by Parsons and Parker on July 9, 2020 and received a response, which

17 was issued on September 17, 2020, concluding there was no finding of misconduct. Id. at

18 7, 44–46. Cordero alleges the delay in response prevented him from pursuing his grievance

19 to the “next level.” Id. at 7.

20 “Of fundamental import to prisoners are their First Amendment ‘right[s] to file

21 prison grievances.’” Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). The Constitution

22 provides protection against “[d]eliberate retaliation” by prison officials interfering in an

23 inmate’s exercise of his right to petition for redress of grievances. Soranno’s Gasco, Inc.

24 v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). A First Amendment retaliation claim has

25 five elements: “(1) An assertion that a state actor took some adverse action against an

26 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

27 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

28 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th

1 Cir. 2005). To state a claim, a plaintiff must plead facts which suggest that retaliation for

2 exercise of protected conduct was the “substantial” or “motivating” factor behind the

3 defendants’ conduct. Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

4 1989.) Mere conclusions of hypothetical retaliation will not suffice; rather, a prisoner must

5 “allege specific facts showing retaliation because of the exercise of the prisoner’s

6 constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562, n.1 (10th Cir. 1990).

7 Here, Cordero has failed to allege any facts to support his claim that Doe Defendant

8 #1 interfered with his ability to file grievances. Indeed, Cordero’s July 9, 2020 grievance

9 in Appeal #18480 was processed and a decision issued on September 17, 2020. FAC at 44–

10 46. Cordero continued to file inmate grievances during that timeframe. For instance, he

11 filed grievances related to various problems he was having at RJD on August 11, 2020,

12 August 13, 2020, August 20, 2020; another on September 10, 2020. See FAC at 47, 51–54.

13 Cordero’s allegations are insufficient to state claim against Doe Defendant #1. See

14 Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. Therefore, Doe Defendant #1, identified

15 as “Appeals Coordinator” at RJD, is dismissed without prejudice.

16 3. Remaining Constitutional Claims/Defendants

17 Cordero’s remaining constitutional claims involve Camacho, Bailey, Galaviz,

18 Gutierrez and Kako and the August 21, 2020 incident at RJD. See FAC at 10–17. He alleges

19 his Eighth Amendment rights were violated when (1) Camacho, Bailey, Galaviz and

20 Gutierrez used excessive force against him, (2) Kako failed to protect him, and (3)

21 Gutierrez and Galaviz prevented him from getting adequate medical attention. He also

22 contends all five Defendants retaliated against him in violation of his First Amendment

23 rights. Id.

24 As pleaded, the Court finds the FAC contains plausible Eighth Amendment claims

25 against Camacho, Bailey, Galaviz, Gutierrez and Kako, sufficient to survive the “low

26 threshold” set to withstand the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2)

27 and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; see also Hudson v.

28 McMillian, 503 U.S. 1, 7 (1992) (holding that in determining whether a defendant has used

1 excessive force in the prison context, courts must consider: (1) the need for application of

2 force; (2) the relationship between the need and the amount of force used; (3) the extent of

3 the injury inflicted; (4) the threat “reasonably perceived by the responsible officials”; and

4 (5) “any efforts made to temper the severity of a forceful response”); Farmer v. Brennan,

5 511 U.S. 825, 834 (1994) (holding a failure-to-protect claim requires that (1) the condition

6 complained of be shown to present a substantial risk of serious harm, and (2) the defendant

7 be shown to have possessed a sufficiently culpable state of mind); Estelle v. Gamble, 429

8 U.S. 97, 106 (1976) (holding that to state a claim based on inadequate medical care, a

9 plaintiff must allege facts sufficient to demonstrate defendants acted with “deliberate

10 indifference” to his serious medical needs). Moreover, the FAC as pleaded alleges

11 plausible First Amendment retaliation claims against Camacho, Bailey, Galaviz, Gutierrez

12 and Kako, sufficient to survive the screening required under 28 U.S.C. §§ 1915(e)(2) and

13 1915A(b). See Rhodes, 408 F.3d at 567–68.

14 D. State Tort Claims

15 To the extent Cordero alleges Galaviz and Gutierrez violated his rights under

16 California civil law, the Court finds he has met the low threshold necessary to state a claim.

17 See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. These claims also survive screening

18 pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b). See Applegate v. Nkwocha, No.

19 1:16-cv-00490-MJS (PC), 2016 WL 4126711, at *6–7 (E.D. Cal. Aug. 3, 2016) (allegations

20 of interference with the ability to file grievances and right to medical care by threat of

21 physical violence were sufficient to state Bane Act claim); Miller v. Cal. Dep’t of Corrs.,

22 No. 3:16-cv-2431-EMC, 2016 WL 3418522, at *3–4 (N.D. Cal. June 22, 2016) (concluding

23 that pro se prisoner stated Bane Act claim against medical personnel who allegedly denied

24 proper medical care and threatened to continue doing so in response to plaintiff’s

25 complaints); Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir. 2006) (“In order to state a claim

26 under [California Government Code] § 845.6, a prisoner must establish three elements: (1)

27 the public employee knew or had reason to know of the need (2) for immediate medical

28 care, and (3) failed to reasonably summon such care.”)

1 E. California Penal Code

2 Finally, Cordero appears to seek criminal liability against Camacho, Bailey, Galaviz,

3 Gutierrez under the California Penal Code sections 118.1, 136.1, 147, 149 and 153. See

4 FAC at 4. Plaintiff cannot bring criminal charges against defendants through a civil lawsuit,

5 and the California Penal Code does not give rise to a civil cause of action. Therefore, these

6 claims are dismissed as frivolous as to all defendants.

7 III. Motion for Appointment of Counsel

8 On January 21, 2022, Plaintiff filed a Motion for Appointment of Counsel. ECF No.

9 25. There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social

10 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And

11 while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that

12 an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390

13 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only under “exceptional

14 circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A

15 finding of exceptional circumstances requires the Court “to consider whether there is a

16 ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to articulate his

17 claims in light of the complexity of the legal issues involved.’” Harrington v. Scribner,

18 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970).

19 While it is too early for the Court to determine Plaintiff’s likelihood of success on

20 the merits, he fails to establish the requisite “exceptional circumstances” that would

21 warrant appointment of counsel. A plaintiff is only entitled to appointed counsel if he can

22 show “that because of the complexity of the claims he [is] unable to articulate his

23 positions.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other

24 grounds, 154 F.3d 952 (9th Cir. 1998) (en banc); see also Taa v. Chase Home Fin., 2012

25 WL 507430, at *2 (N.D. Cal. Feb. 15, 2012) (noting that plaintiffs’ lack of legal training

26 and poverty did not constitute exceptional circumstances, as these are the types of

27 difficulties many other litigants face in proceeding in pro se); see also LaMere v. Risley,

28 827 F.2d 622, 626 (9th Cir. 1987) (affirming a district court’s denial of request for

1 appointment of counsel where pleadings demonstrated petitioner had “a good

2 understanding of the issues and the ability to present forcefully and coherently his

3 contentions”).

4 Cordero has not established that this case is “exceptional” or that the issues in it are

5 particularly complex. Cordero states that he requires assistance of counsel because he

6 suffers from anxiety, depression and PTSD. ECF No. 25 at 2. While the Court is

7 sympathetic to Plaintiff’s mental illnesses, it is an insufficient reason to appoint counsel.

8 See Jones v. Kuppinger, No. 2:13-cv-0451-WBS-AC, 2015 WL 5522290, at *3–*4 (E.D.

9 Cal. Sept. 17, 2015) (stating “[c]ircumstances common to most prisoners, such as a

10 deficient general education, lack of knowledge of the law, mental illness and disability, do

11 not in themselves establish exceptional circumstances warranting appointment of voluntary

12 civil counsel.”); see also Himes v. Gastelo, No. 2:18-cv-00327-PSG-MAA, 2019 WL

13 9044693, at *2 (C.D. Cal. June 20, 2019) (denying motion for appointment of counsel for

14 plaintiff who was housed in the mental health unit and being treated by a psychologist for

15 mental illness); Baker v. Grant, No. 17-cv-1678-RSL, 2018 U.S. Dist. LEXIS 109376, at

16 *2–4 (W.D. Wash. June 29, 2018) (denying motion to appoint counsel for plaintiff who

17 was bipolar, schizophrenic, and had a possible brain injury because he demonstrated an

18 adequate ability to articulate his claims pro se). The other factors Plaintiff claim indicate

19 exceptional circumstances—indigency, incarceration, and being a layman untrained in the

20 law—are difficulties that any imprisoned litigant would have in proceeding pro se; they do

21 not indicate exceptional factors. See Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th

22 Cir. 1990) (upholding denial of appointment of counsel where plaintiff complained that he

23 had limited access to law library and lacked a legal education).

24 Therefore, the Court finds no “exceptional circumstances” currently exist and

25 DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 25) without prejudice.

26 IV. Conclusion and Order

27 Good cause appearing, the Court:

28 1. DISMISSES all claims against Defendants G. Johnson and Does #1–20

1 without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and

2 § 1915A(b).

3 2. DENIES Plaintiff’s Motion for Appointment of Counsel without prejudice.

4 (ECF No. 25.)

5 3. DIRECTS the Clerk to issue summonses as to Plaintiff’s First Amended

6 Complaint (ECF No. 22) upon Defendants F. CAMACHO, M. BAILEY, GALAVIZ,

7 ABRAHAM GUTIERREZ, and KAKO and forward it to Plaintiff along with a blank U.S.

8 Marshal Form 285 for each of these Defendants. In addition, the Clerk will provide Plaintiff

9 with certified copies of this Order, certified copies of his First Amended Complaint and

10 Plaintiff’s Declaration in Support of the FAC (ECF Nos. 22 and 23), and the summons so

11 that he may serve the Defendants. Upon receipt of this “IFP Package,” Plaintiff must

12 complete the USM Form 285s as completely and accurately as possible, include an address

13 where each Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR

14 4.1c., and return them to the United States Marshal according to the instructions the Clerk

15 provides in the letter accompanying his IFP package.

16 4. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

17 upon Defendants F. CAMACHO, M. BAILEY, GALAVIZ, ABRAHAM GUTIERREZ,

18 and KAKO upon receipt and as directed by Plaintiff on the completed USM Form 285s,

19 and to promptly file proof of service, or proof of any attempt at service unable to be

20 executed, with the Clerk of Court. See S.D. Cal. CivLR 5.2. All costs of that service will

21 be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

22 5. ORDERS Defendants F. CAMACHO, M. BAILEY, GALAVIZ,

23 ABRAHAM GUTIERREZ, and KAKO, once they have been served, to reply to Plaintiff’s

24 Complaint within the time provided by the applicable provisions of Federal Rule of Civil

25 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

26 permitted to “waive the right to reply to any action brought by a prisoner confined in any

27 jail, prison, or other correctional facility under section 1983,” once the Court has conducted

28 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has

1 |) made a preliminary determination based on the face on the pleading alone that Plaintiff has

2 “reasonable opportunity to prevail on the merits,” defendant is required to respond).

3 6. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

4 ||serve upon Defendants, or if appearance has been entered by counsel, upon Defendants

5 ||}counsel, a copy of every further pleading, motion, or other document submitted for the

6 ||Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

7 original document he seeks to file with the Clerk of the Court, a certificate stating the

8 || manner in which a true and correct copy of that document has been served on Defendants

9 their counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document

10 || received by the Court which has not been properly filed with the Clerk or which fails to

11 |/include a Certificate of Service upon the Defendants, or their counsel, may be disregarded.

12 IT IS SO ORDERED.

13 || Dated: April 26, 2022 NO

14 eS

15 Honorable Linda Lopez

6 United States District Judge

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