Ramsey v. Corronado

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DANIEL RAMSEY, Case No.: 22-cv-1859-MMA (WVG)

CDCR #K99536

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

14 PAUPERIS;

15 vs. (2) DISMISSING DUE PROCESS

16 CLAIM FOR FAILURE TO STATE A

CLAIM UNDER 28 U.S.C.

17 J. CORRONADO, G. ORTIZ, H. §§ 1915(e)(2)(B) & 1915A; AND

18 MOSELEY,

(3) DIRECTING U.S. MARSHAL TO

Defendants.

19 EFFECT SERVICE UPON

DEFENDANTS AS TO PLAINTIFF’S

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FIRST AMENDMENT CLAIMS

21 ONLY PURSUANT TO 28 U.S.C.

§ 1915(d) AND FED. R. CIV. P. 4(c)(3)

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24 I. INTRODUCTION

25 Daniel Chris Ramsey (“Plaintiff” of “Ramsey”), a state inmate currently

26 incarcerated at High Desert State Prison and proceeding pro se, has filed a civil rights

27 action pursuant to 42 U.S.C. § 1983, along with an application to proceed in forma

28 pauperis (“IFP”). Doc. Nos. 6, 7. In his Complaint, Ramsey alleges his Due Process and

1 First Amendment rights were violated when Defendants withheld some of his mail. See

2 Doc. No. 6. For the reasons discussed below, the Court grants Plaintiff’s IFP motion,

3 dismisses his due process claim and directs U.S. Marshal Service of the Complaint as to

4 his First Amendment claim.

5 II. MOTION TO PROCEED IFP

6 All parties instituting any civil action, suit or proceeding in a district court of the

7 United States, except an application for writ of habeas corpus, must pay a filing fee of

8 $402. See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the

9 required filing fee if the Court grants leave to proceed IFP based on indigency. 28 U.S.C.

10 § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).

11 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit

12 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

13 Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a “certified

14 copy of the [prisoner’s] trust fund account statement (or institutional equivalent) for . . .

15 the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

17 trust account statement, the Court assesses an initial payment of 20% of (a) the average

18 monthly deposits in the account for the past six months, or (b) the average monthly

19 balance in the account for the past six months, whichever is greater, unless the prisoner

20 has no assets. See 28 U.S.C. § 1915(b)(1) & (4). Prisoners who proceed IFP must repay

21 the entire fee in installments regardless of whether their action is ultimately dismissed.

22 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).

23 Plaintiff has provided a Prison Certificate authorized by an accounting officer.

24 Doc. No. 7 at 1. During the six months prior to filing suit, Plaintiff had an average

25 monthly balance of $0.39, average monthly deposits of $0.29, and had an available

26 balance of $0.12 in his account at the time he filed suit. Id. The Court finds Plaintiff has

27 established an inability to pay the required filing fee and GRANTS Plaintiff’s IFP

28 Motion. While the Court will not assess an initial payment, Plaintiff will be required to

1 pay the full $350 filing fee in installments which will be collected from his trust account

2 as set forth in 28 U.S.C. § 1915(b)(2).

3 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e) AND § 1915A(b)

4 A. Legal Standards

5 Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), the Court must screen a

6 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,

7 malicious, fails to state a claim, or seeks damages from defendants who are immune. See

8 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,

9 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has

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

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

12 claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires

13 that a complaint to “contain sufficient factual matter . . . to state a claim to relief that is

14 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

15 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals

16 of the elements of a cause of action, supported by mere conclusory statements, do not

17 suffice” to state a claim. Id. The “mere possibility of misconduct” or “unadorned, the

18 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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

20 To state a claim under 42 U.S.C. § 1983, Plaintiff must allege two essential

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

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

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

24 1030, 1035‒36 (9th Cir. 2015).

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14

(eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to

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1 B. Plaintiff’s Allegations

2 In his Complaint, Ramsey alleges that on November 8, 2019, while he was an

3 inmate at R.J. Donovan Correctional Facility (“RJD”), he was sent, via mail, “nude

4 photographs with edited black permanent marker covering” the frontal nudity. Doc. No.

5 6 at 3. Mailroom staff confiscated the photographs and used a “substance/solvent” in an

6 attempt to remove the black markings. Id. After learning the photographs had been

7 confiscated Plaintiff filed an administrative grievance, requesting the photos be given to

8 him because they did not violated regulations set forth by the California Department of

9 Corrections and Rehabilitation (“CDCR”). See Doc. No. 6-2 at 2, 5. Ultimately, the

10 photographs were approved by Officer Garcia, the mailroom supervisor, and Garcia gave

11 them to Ramsey. Doc. No. 6 at 3. Plaintiff then withdrew his administrative grievance.

12 Id.; see also Doc. No. 6-2 at 3.

13 On February 12, 2020, Plaintiff again received photographs with nudity covered by

14 black, permanent marker and they were again confiscated. Doc. No. 3. Ramsey filed

15 another administrative grievance. Doc. No. 6-3 at 3. After a review, Garcia gave

16 Ramsey the photographs and Ramsey withdrew his grievance on March 17, 2020. Id.at

17 4. On the same day, Garcia issued a “128B chrono,”2 noting Ramsey had been given the

18 “allowable photos.” Doc. Nos. 6 at 3, 6-3 at 2.

19 In October of 2020, Ramsey wrote Garcia in anticipation of additional photographs

20 coming in. Garcia “made sure [Ramsey] received his mailed photographs” on that

21 occasion. Garcia also “remind[ed] staff that there were not to confiscate the

22 photographs.” Doc. No. 6 at 3–4. On October 20, 2020, Garcia sent Ramsey a note that

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25 2 The Court takes judicial notice of the CDCR Department Operations Manual (“DOM”), which states

CDC Form 128-B, General Chrono “shall be used by counselors and chaplains when making reports on

26 the religious activity or outside contacts of inmates.” DOM § 72010.7.1 (emphasis added). See Fed. R.

Civ. P. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it

27 . . . (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and

readily determined from sources whose accuracy cannot reasonably be questioned.”); Brown v. Valoff,

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1 stated, in part, “I have spoken with my staff. Please let me know if this occurs again.”

2 Doc. No. 6-4 at 2. Plaintiff did not have “any problems” receiving his mail after that

3 until 2022. Doc. No. 6 at 4.

4 On May 6, 2022, mailroom staff confiscated photographs from Ramsey’s incoming

5 mail “for further review.” Id.; see also Doc. No. 6-5 at 2. The confiscated photos

6 depicted frontal nudity that was covered with black, permanent marker. Id. The

7 photographs were ultimately reviewed by Defendant Corronado, who concluded they

8 were in violation of CDCR regulations due to “nudity.” Doc. No. 6-5 at 2. Ramsey

9 received a CDCR Form 18193 which informed him the photographs were disallowed

10 because they were in violation of CDCR regulations against nudity. Id. Ramsey filed an

11 administrative grievance, noting that he had “been through th[is] same issue before” and

12 the photos should be approved because the nudity had been covered by permanent

13 marker. Doc. No. 6 at 4. On July 22, 2022, Defendant Moseley denied Ramsey’s appeal,

14 stating the photos depicted “exposed vaginas, bare female breasts, acts of sexual

15 intercourse, & fellatio.” Doc. No. 6-5 at 3. Moseley noted that “some [nudity was]

16 covered with black marker . . .[but] the black marker can be removed.” Id.

17 On July 13, 2022, Ramey received another CDCF Form 1819 notification signed

18 by Defendant Ortiz, informing him the mail contained nude photographs and was being

19 withheld. Id. at 5; see also Doc. No. 6-6 at 2. Ramsey filed a grievance, noting that in

20 the past he had been permitted photographs with the nudity obscured by permanent

21 marker and pointing to the March 17, 2020 chrono issued by Garcia. Doc. No. 6 at 6.

22 Moseley denied Ramsey’s appeal on October 22, 2022, concluding the photographs were

23 “appropriately disallowed” because they contained nudity. Id.; see also Doc. No. 6-6 at

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27 3 A CDCR Form 1819 is titled “Notification of Disapproval—Mail / Packages / Publication.” See DOM

§54010.16.

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1 C. Discussion

2 Ramsey contends his First Amendment and Due Process rights were violated by

3 Corronado, Ortiz and Melendez. Specifically, he contends all three defendants

4 improperly categorized the photographs as contraband when the nudity had been

5 completely obscured by black permanent marker. Doc. No. 6 at 3–6. Plaintiff seeks

6 $200,00 in money damages and the return of the confiscated photographs or “similar”

7 photographs. Id. at 8.

8 1. Due Process

9 Plaintiff contends Defendants violated his due process rights by improperly

10 confiscating the photographs from his mail. Id. 3–6. Prisons may regulate the processing

11 of inmate mail so long as those regulations further an important or substantial

12 government interest other than the suppression of expression. See Procunier v. Martinez,

13 416 U.S. 396, 411–12 (1974) (overruled on other grounds, Thornburgh v. Abbott, 490

14 U.S. 401, 412–414 (1989)). Nevertheless, prisoners have a Fourteenth Amendment due

15 process liberty interest in receiving notice that incoming mail has been withheld by

16 prison authorities. Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999). This liberty

17 interest is protected from “arbitrary government invasion,” and any decision to censor or

18 withhold delivery of mail must be accompanied by “minimum procedural safeguards.”

19 Procunier, 416 U.S. at 417–18. These safeguards include: (1) notifying the inmate that

20 the mail was seized; (2) allowing the inmate a reasonable opportunity to protest the

21 decision; and (3) referring any complaints to a prison official other than the one who

22 seized the mail. Id. at 418–19; Krug v. Lutz, 329 F.3d 692, 697–08 (9th Cir. 2003)

23 (“Following Thornburgh, this circuit has repeatedly acknowledged that withholding

24 delivery of inmate mail must be accompanied by the minimum procedural safeguards

25 established in [Procunier].”).

26 Here, Ramsey concedes he was informed his mail was being withheld because the

27 enclosed photos violated CDCR regulations. On both occasions he received notification

28 his mail was “disapproved” via CDCR Form 1819––the first signed by Corronado on

1 May 6, 2022 and the second signed by Ortiz on July 13, 2022. Doc. Nos. 6-5 at 2, 6-6 at

2 2. Ramsey was provided an opportunity to appeal both decisions via administrative

3 grievance, and he did so. See Doc. No. 6 at 4–5. Plaintiff’s grievance appeals were

4 reviewed by Moseley and denied on July 29, 2022 and October 22, 2022, respectively.

5 Doc. Nos. 6-5 at 3, 6-6 at 3. The reason for the denial was explained to Ramsey. See id.

6 As such, Ramsey received all the process he was due. Thus, to the extent he claims his

7 due process rights were violated by withholding his mail, he has failed to state a claim.

8 Procunier, 416 U.S. at 417–18

9 Furthermore, to the extent Ramsey alleges Mosely also denied him due process

10 when he denied his administrative appeals, Ramsey also fails to state a claim. Inmates

11 have no stand-alone due process right related to administrative grievance process.

12 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639,

13 640 (9th Cir. 1988) (holding there is no protected liberty interest to a grievance

14 procedure). California’s regulations grant prisoners a purely procedural right: the right to

15 have a prison appeal. See Cal. Code Regs. tit. 15, §§ 3084–3084.9 (2014). In other

16 words, prison officials are not required under federal law to process inmate grievances in

17 a certain way. Thus, the denial, rejection, screening out of issues, review, or cancellation

18 of a grievance does not constitute a due process violation. See, e.g., Evans v. Skolnik,

19 637 F. App’x 285, 288 (9th Cir. 2015) (stating a prison official’s denial of a grievance

20 does not itself violate the constitution); Towner v. Knowles, No. S-08-cv-2823-LKK-

21 EFB, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (finding allegations that prison

22 officials screened out inmate appeals without any basis failed to indicate a deprivation of

23 federal rights); Williams v. Cate, 1:09-CV-00568-OWW-YNP PC, 2009 WL 3789597, at

24 *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the

25 vindication of his administrative claims.”). Therefore, Ramsey cannot state a due process

26 claim against Moseley for denying his administrative appeals. See Ramirez, 334 F.3d at

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28 In sum, Plaintiff has failed to state a due process claim upon which relief may be

1 granted against Corronado, Ortiz or Moseley. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),

2 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126–27.

3 2. First Amendment

4 Ramsey also alleges Defendants Corronado, Ortiz and Moseley violated his First

5 Amendment rights when they confiscated photographs which did not depict nudity. Doc.

6 No. 6 at 3–6. Prisoners enjoy a First Amendment right to send and receive mail. See

7 Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh, 490 U.S. at 407).

8 A prison, however, may adopt regulations or practices which impinge on a prisoner’s

9 First Amendment rights so long as the regulations are “reasonably related to legitimate

10 penological interests.” See Turner v. Safley, 482 U.S. 78, 89 (1987); Valdez v.

11 Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (stating jail personnel may regulate

12 speech if a restriction is reasonably related to legitimate penological interests and an

13 inmate is not deprived of all means of expression). The Turner standard applies to

14 regulations and practices concerning all correspondence between prisoners and to

15 regulations concerning incoming mail received by prisoners from non-prisoners. See

16 Thornburgh, 490 U.S. at 413.

17 Here, Plaintiff alleges his mail was improperly withheld for depicting frontal

18 nudity when, in fact, no nudity was shown. Specifically, both the May 6, 2022 and the

19 July 13, 2022 “Notification[s] of Disapproval for Mail” indicate the photos were

20 confiscated under California Code of Regulations §§ 3135(d)(1), and 3006(c)(17), both

21 of which prohibit possessing or receiving in the mail “sexually explicit” images that

22 depict “frontal nudity.” See Doc. Nos. 6-5 at 2, 6-6 at 2; see also Cal. Code Regs., tit. 15

23 §§ 3135(d)(1), 3006(c)(17). The notifications also cited DOM § 54010.14 as a basis for

24 confiscating the photos. See Doc. Nos. 6-5 at 2, 6-6 at 2. Section 54010.14 prohibits the

25 receipt of “obscene materials,” which include sexually explicit images that “show frontal

26 nudity including personal photographs, drawings, and magazines and pictorials that show

27 frontal nudity.” See DOM §§ 54010.14, 54010.15.

28 Ramsey does not challenge the CDCR regulations barring “sexually explicit”

1 photographs depicting frontal nudity. Instead, he alleges the confiscated photographs

2 were not prohibited under the cited regulations because the frontal nudity had been

3 completely obscured by black permanent marker. Ramsey points to photographs he

4 previously received after appeal, in which the frontal nudity was similarly blacked out.

5 Thus, he alleges Corronado, Ortiz and Melendez withheld the photographs despite

6 lacking a legitimate penological interest in doing so. Taking Ramsey’s allegations as

7 true, the Court finds his First Amendment claims against Defendants Corronado, Ortiz

8 and Moseley survive the “low threshold” set for sua sponte screening pursuant to 28

9 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at

10 678; Turner, 482 U.S. at 89; see Thornburgh, 490 U.S. at 413.

11 IV. CONCLUSION

12 For the reasons set forth above, the Court hereby:

13 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

14 (Doc. No. 7).

15 2. ORDERS the Secretary of the CDCR, or his designee, to collect from

16 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly

17 payments from the account in an amount equal to twenty percent (20%) of the preceding

18 month’s income and forward payments to the Clerk of the Court each time the amount in

19 the account exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

20 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED

21 TO THIS ACTION.

22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff

23 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, by

24 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

25 4. DISMISSES Plaintiff’s Due Process claims as to all Defendants pursuant to

26 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

27 5. DIRECTS the Clerk to issue summonses as to Plaintiff’s Complaint (Doc.

28 No. 6) upon Defendants and forward them to Plaintiff along with a blank U.S. Marshal

1 Forms 285. In addition, the Clerk will provide Plaintiff with certified copies of this

2 Order, a certified copy his Complaint, and the summonses so that he may serve the

3 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Forms 285

4 as completely and accurately as possible, include an address where Defendants may be

5 served, see S.D. Cal. Civ. L.R. 4.1.c, and return them to the United States Marshal

6 according to the instructions the Clerk provides in the letter accompanying his IFP

7 package.

8 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

9 upon Defendants as directed by Plaintiff on the USM Forms 285 provided, and to file

10 executed waivers of personal service upon Defendants with the Clerk of Court as soon as

11 possible after their return. Should a Defendant fail to return the U.S. Marshal’s request

12 for waiver of personal service within 90 days, the U.S. Marshal shall instead file the

13 completed Form USM 285 Process Receipt and Return with the Clerk of Court, include

14 the date the summons, Complaint and request for waiver was mailed to that Defendant,

15 and indicate why service upon the party remains unexecuted. All costs of that service

16 will be advanced by the United States; however, if a Defendant located within the United

17 States fails, without good cause to sign and return the waiver requested by the Marshal on

18 Plaintiff’s behalf, the Court will impose upon the Defendant any expenses later incurred

19 in making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

20 7. ORDERS Defendants, once they have been served, to reply to Plaintiff’s

21 Complaint, and any subsequent pleading they may file in this matter in which they are

22 named as parties, within the time provided by the applicable provisions of Federal Rule

23 of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (stating that while a

24 defendant may occasionally be permitted to “waive the right to reply to any action

25 brought by a prisoner confined in any jail, prison, or other correctional facility under

26 section 1983,” once the Court has conducted its sua sponte screening pursuant to 28

27 U.S.C. §§ 1915(e)(2) and 1915A(b), and thus, has made a preliminary determination

28 based on the face on the pleading that Plaintiff has a “reasonable opportunity to prevail

1 |}on the merits,” defendant is required to respond).

2 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

3 serve upon Defendants, or if appearance has been entered by counsel, upon Defendants’

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

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

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

7 |}manner in which a true and correct copy of that document was served on Defendants or

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

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

10 include a Certificate of Service upon the Defendants, may be disregarded.

1] IT IS SO ORDERED.

12 Dated: May 24, 2023

13 Mikel lM =f phlr

14 HON. MICHAEL M. ANELLO

15 United States District Judge

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